Proposed Sections
Before an agency may permanently adopt a new or amended section, or repeal an 
existing section, a proposal detailing the action must be published in the Texas 
Register at least 30 days before any action may be taken. The 30-day time period 
gives interested persons an opportunity to review and make oral or written 
comments on the section. Also, in the case of substantive sections, a public 
hearing must be granted if requested by at least 25 persons, a governmental 
subdivision or agency, or an association having at least 25 members.
Symbology in proposed amendments. New language added to an existing section is 
indicated by the use of bold text. [Brackets] indicate deletion of existing 
material within a section.
TITLE 1. ADMINISTRATION
Part II. Texas Ethics Commission
Chapter 5. Campaign Financing
Subchapter B. Reporting Forms
Candidate/Officerholder Sworn Report of Contributions and Expenditures
1 TAC sec.5.11
(Editor's Note: The Texas Ethics Commission proposes for permanent adoption the 
new section it adopts on an emergency basis in this issue. The text of the new 
section is in the Emergency Rules section of this issue.)
The Texas Ethics Commission proposes new sec.5.11,  concerning the filing of 
Sworn Reports by Candidates/Officeholders. The new section sets forth the form 
for the reporting of contributions and expenditures by candidate/officeholders.
Jim Mathieson, staff attorney, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section.
Mr. Mathieson, also has determined that for each year of the first five years 
the section is in effect the public benefit anticipated as a result of enforcing 
the section will be to comply with Title 15, Texas Election Code, by 
promulgating the necessary forms for candidates/officeholders to file their 
sworn reports of contributions and expenditures. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the section as proposed.
Comments on the proposal may be submitted to Jim Mathieson, 1101 Camino La 
Costa, Austin, Texas 78752. Only written comments will be accepted.
The new section is proposed under Texas Civil Statutes, Article 6252-9d.1, which 
provides the Texas Ethics Commission with the authority to promulgate rules 
governing, Title 15, Texas Election Code, and prescribe forms required to be 
filed with the commission.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 24, 1992.
TRD-9201156
Jim Mathison
Staff Attorney
Texas Ethics Commission
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 406-0100
       
Notice of Intent to File Monthly Sworn Reports of Contributions and Expenditures 
or Notice of Intent to Revert to the Regular Filing Schedule
1 TAC sec.5.12
(Editor's Note: The Texas Ethics Commission proposes for permanent adoption the 
new section it adopts on an emergency basis in this issue. The text of the new 
section is in the Emergency Rules section of this issue.)
The Texas Ethics Commission proposes new sec.5.12, concerning the notice of 
intent to file monthly sworn reports of contributions and expenditures or notice 
of intent to revert to the regulate filing schedule by general-purpose 
committees. This section set forth the form for the reporting of notice of 
intent to file monthly sworn reports of contributions and expenditures or intent 
to revert to the regular filing schedule by general-purpose committees.
Jim Mathieson, staff attorney, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section.
Mr. Mathieson, also has determined that for each year of the first five years 
the section is in effect the public benefit anticipated as a result of enforcing 
the section will be to comply with Title 15, Texas Election Code, by 
promulgating the necessary forms for general-purpose committees to report their 
intent to file monthly sworn reports of contributions and expenditures or to 
revert to the regular filing schedule. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the section as proposed.
Comments on the proposal may be submitted to Jim Mathieson, 1101 Camino La 
Costa, Austin, Texas 78752. Only written comments will be accepted.
The new section is proposed under Texas Civil Statutes, Article 6252-9d.1, which 
provides the Texas Ethics Commission with the authority to promulgate rules 
governing Title 15, Texas Election Code, and prescribe forms required reports to 
be filed with the commission.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 24, 1992.
TRD-9201152
Jim Mathison
Staff Attorney
Texas Ethics Commission
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 406-0100
       
Chapter 10. Registration and Regulation of Lobbyists
Lobbyist Termination Notice
1 TAC sec.10.35
(Editor's Note: The Texas Ethics Commission proposes for permanent adoption the 
new section it adopts on an emergency basis in this issue. The text of the new 
section is in the Emergency Rules section of this issue.)
The Texas Ethics Commission proposes new sec.10.35, concerning the termination 
notice by lobbyists. This section set forth the form by which lobbyists would 
report notice of termination of lobbying activities to the commission.
Jim Mathieson, staff attorney, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section.
Mr. Mathieson, also has determined that for each year of the first five years 
the section is in effect the public benefit anticipated as a result of enforcing 
the section will be to comply with the Government Code, sec.305, by promulgating 
the necessary forms for lobbyists to file their notices of termination. There 
will be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the sections as proposed.
Comments on the proposal may be submitted to Jim Mathieson, 1101 Camino La 
Costa, Austin, Texas 78752. Only written comments will be accepted.
The new section is proposed under Texas Civil Statutes, Article 6252-9d.1, which 
provides the Texas Ethics Commission with the authority to establish 
registration and regulation requirements concerning lobbyists and to prescribe 
forms for reports to be filed with the commission.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 24, 1992.
TRD-9201154
Jim Mathison
Staff Attorney
Texas Ethics Commission
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 406-0100
       
TITLE 4. AGRICULTURE
Part I. Texas Department of Agriculture
Chapter 15. Consumer Services Division
Metrology
4 TAC sec.sec.15.22, 15.24, 15.25
The Texas Department of Agriculture proposes amendments to sec.sec.15.22, 15. 
25, and new 15.24, concerning regulation of commercial scale- and meter-service 
agencies and service persons. The purpose of these changes is to improve the 
accuracy of weighing and measuring devices used in commercial transactions in 
Texas by setting standards for the scale- and meter-service industry. These 
service agencies and service persons install all new weighing and measuring 
devices in Texas and service, repair, or adjust each scale or meter that fails 
TDA inspection. The new standards will encourage professionalization in the 
service industry and improve the quality of scale and meter installations and 
repairs. In turn, these improvements will make commerce in weighed and measured 
goods in Texas fairer and assist in the orderly and effective operation of TDA's 
weights and measures enforcement program.
The amendment to sec.15.22 adds definitions to be used in Chapter 15. New 
sec.15.24 provides new requirements for registration as a registered service 
person or registered service agency and includes procedures for application, 
required qualifications, privileges and responsibilities of a registrant, 
testing requirements, minimum equipment specifications, procedures for issuance 
of and suspension and/or revocation of a certificate of registration, equipment 
inspection requirements, and procedures for use of new installation reports and 
out-of-order tags.
James H. Eskew, coordinator for metrology labs, has determined that for the 
first five-year period the sections are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the sections. There will be no effect on local employment as a 
result of enforcing or administering the sections.
Mr. Eskew also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be improved commercial scale and meter service, improved 
enforcement of state weights and measures law, improved consumer protection, and 
fairer trade in commodities and products that are sold by weight or measure in 
this state. There will be no effect on small businesses. The anticipated 
economic cost to persons who are required to comply with the sections as 
proposed will be $25 per year in the form of a new registration fee, and the 
anticipated economic cost to service agencies that are required to comply with 
the sections as proposed will be $50 per year in the form of a new registration 
fee. Additional economic costs for training, additional or better equipment, or 
professional publications may be incurred by persons whose training, equipment, 
or information resources do not meet the standards established by the proposed 
regulation.
Comments may be submitted to James H. Eskew, Coordinator For Metrology Labs, 
Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments 
must be received no later than 30 days from the date of publication of this 
proposal in the Texas Register.
The amendments and new section are proposed under the Texas Agriculture Code, 
sec.13.002, which provides the Texas Department of Agriculture with the 
authority to enforce the provisions of Chapter 13, Texas Agriculture Code, 
concerning the sale and use of weights and measures and to supervise all weights 
and measures sold in this state; and the General Appropriations Act, House Bill 
1, 72nd Legislature, 1991, which establishes fee rates for the registration and 
issuance of the registration card issued to registered service persons and 
certificates of registration issued to registered service agencies by the Texas 
Department of Agriculture.
sec.15.22. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise.
<nl>   Anniversary date -The month and day each year on which a service agency's 
standards are due for recalibration and on which the agency's scale or meter 
service agency registration expires.
<nl>   Commercial and law-enforcement weighing and measuring device-Any weight 
or measure or weighing or measuring device commercially used or employed in 
establishing the size, quantity extent, area or measurement of quantities things 
produce, articles for distribution or consumption purchased offered or submitted 
for sale, hire, or award, or in computing any charge or payment for services 
rendered on the basis of weight or measure including an accessory attached to or 
used in connection with a commercial weighing or measuring device when such 
accessory is so designed or installed that its operation affects the accuracy of 
the device. The term also includes weighing and measuring equipment in official 
use for the enforcement of law or for the collection of statistical information 
by government agencies.
<nl>   Department-Texas Department of Agriculture.
<nl>   New installation report-A form supplied by the department that is to be 
completed and submitted for each new weighing or measuring device placed into 
commercial service.
<nl>   NIST-The National Institute of Standards and Technology of the United 
States Department of Commerce.
<nl>   Out-of-order tag -A tag placed by the department on any weighing or 
measuring device that does not meet the specifications, tolerances, or other 
technical requirements for weighing and measuring devices that are set forth in 
NIST Handbook 44.
 Person-Individuals, partnerships, corporations, and associations, and shall 
include the singular and the plural<nl>, except "service person" refers solely 
to individuals.
<nl>   Registered service agency-Any agency firm company partnership 
corporation, or other entity that for hire award, commission, or any other 
payment of any kind installs, services, repairs or reconditions a commercial 
weighing or measuring device and that voluntarily registers as such with the 
department and identifies its individual service persons to the department.
 Registered <nl>service person<ol> [serviceman]-[Shall be construed to mean any] 
<nl>Any<ol> individual who for hire, award, commission, or any other payment of 
any kind, installs, services, repairs, or reconditions a commercial weighing or 
measuring device, and who voluntarily registers  <nl>with the department to 
service and install weighing or measuring devices<ol> [himself as such with the 
Texas Department of Agriculture and who has the authority to remove out-of-order 
tags from rejected weighing or measuring devices or to place in service newly 
installed or reconditioned weighing or measuring devices of the class approved].
<nl>   Sub-kit-An unbroken series of test weights that weighs a total of not 
less than one pound in avoirdupois units and whose smallest test weight weighs 
not more than 1/16 ounce or 0.005 pound.
<nl>   Test kit-A collection of test weights that weighs a total of 31 pounds 
and that consists of one sub-kit at least two one-pound test weights, and any 
combination of other test weights that allows a scale of 31 pounds capacity or 
less to be tested in one-pound increments to capacity.
sec.15.24. Requirements for Registered Service Persons and Registered Service 
Agencies.
(a) Application.
(1) An individual or agency qualified by training or experience may apply for 
registration to install and service any or all classes of weighing and/or 
measuring devices on an application form supplied by the department. This form, 
duly signed and notarized, shall include certification by the applicant that the 
individual or agency:
(A) is fully qualified to install, service, repair, or recondition devices of 
all classes for which registration is sought;
(B)  has in his or her possession or available for use, and will use, all 
necessary testing equipment and standards; and
(C) has full knowledge of all appropriate weights and measures laws, orders, 
rules, and regulations.
(2) An applicant shall also submit an affidavit as to the qualifications 
required in subsection (b) of this section, as required by the department.
(3) Application for registration shall be voluntary, but the department may 
reject or limit any application.
(b) Qualifications.
(1)  To be registered, an applicant must possess the following minimum 
qualifications:
(A) completion of agency or factory training in the installation or servicing of 
each class of device that the applicant seeks to be registered to install or 
service;
(B) completion of a three-month general apprenticeship in each field of service 
in which the applicant seeks to be registered;
(C) passage prior to initial registration and every third year thereafter of a 
written test administered by the department; and
(D) ownership of or employment by an agency that owns test equipment that meets 
the standards for minimum equipment set out in subsection (d) of this section 
and that is certified by the department or by another city or state weights and 
measures laboratory that is certified by The National Institute of Standards and 
Technology.
(2) Training and apprenticeship credentials accepted by the department from a 
registered service person or an applicant for registration shall be transferable 
to that person if he or she changes employers from one service agency to 
another.
(c) Written tests.
(1) The department shall devise and administer a written test for each class of 
scale or meter that a service person may be registered to install or service.
(2)  The department shall offer these tests on a regular schedule at the Austin 
metrology laboratory and at each of the department's regional offices.
(3)  The passing score for each test shall be 70% or higher.
(4) No person may take a test more than once during any period of seven 
consecutive days.
(d) Minimum equipment.
(1) An applicant must have available sufficient standards and equipment to 
adequately test devices as set forth in the notes section of each applicable 
code in the most recent published edition of NIST Handbook 44, "Specifications, 
Tolerances, and Other Technical Requirements for Weighing and Measuring 
Devices," and in the most recent published edition of NIST Publication 12, 
"Examination Procedures Outlines for Weighing and Measuring Devices."
(2) Minimum equipment for each class of device is as follows:
(A) Class 1. scales, capacity 100 pounds or less: one 31-pound test kit, and 
additional test weights capable of testing a scale of 100 pounds capacity or 
less to not less than 105% of its capacity;
(B) Class 2. scales, capacity more than 100 pounds but not more than 1, 000 
pounds: one 31-pound test kit, and additional test weights equal to 100 pounds 
or 50% of the capacity of the scale being tested, whichever is more;
(C) Class 3. scales, capacity more than 1,000 pounds but not more than 40,000 
pounds: test weights equal to 500 pounds or 25% of the capacity of the scale 
being tested, whichever is more, and correction weights in sizes no larger than 
one-half the minimum graduation of any scale to be tested;
(D)  Class 4. scales, capacity more than 40,000 pounds: test weights equal to 
10, 000 pounds or 10% of the capacity of the scale being tested, whichever is 
more, and correction weights in sizes no larger than one-half the minimum 
graduation of any scale to be tested;
(E) Class 5. liquid measuring devices, maximum flow rate 20 gallons per minute 
or less: one five-gallon test measure; and
(F) Class 6. liquid or liquefied petroleum gas (LPG) measuring devices, maximum 
flow rate more than 20 gallons per minute: one test measure whose capacity 
exceeds the amount of liquid delivered by the device in one minute at the 
maximum flow rate.
(3) Minimum equipment required under this section shall meet all applicable 
specifications contained in the most recent published edition of:
(A) NIST Handbook 105-1, "Specifications and Tolerances for Field Standard 
Weights (NIST Class F);"
(B) NIST Handbook 105-2, "Specifications and Tolerances for Field Standard 
Measuring Flasks;"
(C) NIST Handbook 105-3, "Specifications and Tolerances for Graduated Neck Type 
Volumetric Field Standards."
(4) No more than three service persons may be registered per 31-pound test kit 
or five-gallon test measure.
(5) Each service agency must have at least one copy of the most recent published 
edition of NIST Handbook 44 and Texas Weights and Measures Laws (Texas 
Agriculture Code, Chapter 13), and this chapter.
(e)  Certificates of registration and registration cards.
(1) Service agency.
(A) The department shall review and evaluate the qualifications of each 
applicant service agency and shall issue to qualified applicants a certificate 
of registration, including an assigned registration number and other 
designations that identify the agency and that identify each class of device 
that the agency is authorized to place in service or return to service.
(B)  The certificate of registration shall expire one year from the date of 
issuance or on the agency's anniversary date, whichever comes first.
(C)  A separate application shall be submitted for each business location of the 
service agency.
(D) Each service agency shall have at least one registered service person in its 
employ at each registered business location.
(E) An out-of-state service agency shall designate an agent who resides in Texas 
on the form for this purpose provided by the department.
(F) A registered service agency shall notify the department in writing within 30 
days of any change of address or change of name of any of the agency's 
registered business locations.
(G) A registered service agency shall notify the department in writing within 10 
days of the termination of employment of a registered service person.
(2) Service person.
(A) The department shall review and evaluate the qualifications of each 
applicant service person and shall issue to qualified applicants a registration 
card, including an assigned registration number and designations that identify 
the service person, the service agency by which he or she is employed, and the 
types and capacities of device that the service person is authorized to place in 
service or return to service.
(B) The registration card shall expire one year from the date of issuance or on 
the anniversary date of the service person's registered service agency employer, 
whichever comes first.
(C)  A registered service person must surrender his or her registration card to 
an officer or owner of the agency named in the service person's application 
immediately upon termination of employment with that agency.
(f)  Privileges and responsibilities of a registrant.
(1) With respect to weighing and measuring devices of a type and capacity that a 
registrant is authorized to place in service or return to service, the 
registrant may:
(A) remove an out-of-order tag placed on a weighing or measuring device by the 
authority of the department;
(B) place in service, until such time as an official examination can a weighing 
or measuring device that has been officially rejected; and
(C) place in service, until such time as an official examination can be made, a 
new or used weighing or measuring device.
(2) A registrant shall install, repair, and adjust each device as closely as 
practicable to zero error.
(3) Each device placed into service shall meet all specifications set out in 
NIST Handbook 44, and the device shall be suitable for its intended use.
(g) New installation reports and out-of-order tags.
(1) The department shall furnish each registered agency with a supply of new 
installation report forms.
(2)  Within 10 days of placing a device in commercial service, the registered 
service person who installed the device shall complete a new installation report 
for the device and submit the report to the Texas Department of Agriculture 
Weights and Measures Program, P.O. Box 12847, Austin, Texas 78711.
(3)  Within 10 days of removing an out-of-order tag, the registered service 
person who removed the tag shall return the tag to the regional office of the 
Texas Department of Agriculture that issued the tag.
(4) Each new installation report and out-of-order tag shall include the 
registration number and signature of the service person who installed the device 
or removed the tag.
(h) Examination and calibration or certification of standards and testing 
equipment.
(1) At least annually, a registered service agency shall submit to the 
department for examination and certification all standards and testing equipment 
that are used, or are to be used, in servicing and testing weighing and 
measuring devices.
(2) No registered service agency or registered service person may use in 
servicing commercial weighing or measuring devices in this state any standards 
or testing equipment that has not been certified by the department, by a city 
weights and measures division approved by the department, or by another state 
weights and measures laboratory that is certified by NIST.
(3) A copy of any certificate of calibration of equipment certified by a city or 
another state weights and measures laboratory must be on file with the 
department.
(i) Suspension and revocation of registration.
(1) The department may suspend or revoke a certificate of registration or 
registration card at any time if a registrant fails to comply with a provision 
of this section or a provision of Texas Agriculture Code, Chapter 13, including, 
but not limited to:
(A) failure to have test equipment or standards certified;
(B) failure to use adequate testing equipment; or
(C) failure to adjust a commercial or law-enforcement device to comply with NIST 
Handbook 44 subsequent to service or repair.
(2)  Before suspending or revoking a certificate of registration or registration 
card issued under this section, the department shall conduct a hearing on the 
proposed suspension or revocation. The decision of the department may be 
appealed in the same manner as contested cases under the Administrative 
Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a, and 
Chapter 1 of this title (relating to General Practice and Procedure).
(3)  The department may refer to the appropriate prosecuting attorney for 
prosecution under applicable civil and criminal codes any person who has 
violated or is violating any provision of this section or any provision of Texas 
Agriculture Code, Chapter 13.
sec.15.25. Tolerances and Specifications for Reference Standards and Field 
Standards.
(a) The specifications, tolerances, and other technical requirements for field 
standard weights as recommended by the <nl>most recent published edition of 
National Institute of Standards and Technology<ol> [National Bureau of 
Standards] publication 105-1 [Revised 1972], "Specifications and Tolerances for 
Field Standard Weights (<nl>NIST<ol> [NBS] Class F)," shall apply to all field 
standard weights in use in this state except insofar as specifically modified, 
amended, or rejected by a regulation issued by the Texas <nl>Department <ol> 
[Commissioner] of Agriculture. Available from United States Government Printing 
Office (USGPO), Washington, D.C. 20402.
(b) The specifications, tolerances, and other technical requirements for field 
standard measuring flasks as recommended by the <nl>National Institute of 
Standards and Technology<ol> [National Bureau of standards] and expressed in the 
<nl>most recent Published edition of NIST<ol> [National Bureau of Standards] 
publication 105-2, "Specifications and Tolerances for Field Standard Measuring 
Flasks," shall apply to all field standard measuring flasks in use in this state 
except insofar as specifically modified, amended, or rejected by a regulation 
issued by the Texas  <nl>Department<ol> [Commissioner] of Agriculture. Available 
from USGPO, Washington, D.C. 20402.
(c) The specifications, tolerances, and other technical requirements for field 
standard metal volumetric standards as recommended by the <nl>National Institute 
of Standards and Technology <ol> [National Bureau of Standards] and expressed in 
the <nl>most recent published edition of NIST<ol> [National Bureau of Standards] 
publication 105-3, "Specifications and Tolerances for <nl>Graduated Neck 
Type<ol> [Metal] Volumetric Field Standards," shall apply to all field standard 
<nl>graduated neck type <ol> [metal] volumetric standards in use in this state 
except insofar as specifically modified, amended, or rejected by a regulation 
issued by the Texas <nl>Department <ol> [Commissioner] of Agriculture. Available 
from USGPO, Washington, D.C. 20402.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 22, 1992.
TRD-9201084
Dolores Alvarado Hibbs
Chief Administrative Law Judge
Texas Department of Agriculture
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-7583
       
4 TAC sec.15.24
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Department 
of Agriculture or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The Texas Department of Agriculture proposes the repeal of sec.15.24, concerning 
the requirements for registered servicemen. The purpose of this proposal is to 
allow for the adoption of an entirely new sec.15.24, which will improve the 
accuracy of weighing and measuring devices used in commercial transactions in 
Texas by setting standards for the scale- and meter-service industry.
James H. Eskew, coordinator for metrology labs, has determined that for the 
first five-year period the repeal is in effect there will be no fiscal 
implications for state government as a result of enforcing or administering the 
repeal. There will be no fiscal or economic implications for local government or 
local employment as a result of enforcing or administering the repeal.
Mr. Eskew also has determined that for each year of the first five years the 
repeal is in effect the public benefit anticipated as a result of enforcing the 
repeal will be greater professionalism in the service industry, and an 
improvement in the quality of scale and meter installations and repairs. No 
fiscal implications or economic costs to businesses or persons who are required 
to comply with the repeal is anticipated.
Comments may by submitted to James H. Eskew, Coordinator for Metrology Labs, 
Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments 
must be received no later than 30 days from the date of publication of the 
proposal in the  Texas Register.
The repeal is proposed under the Texas Agriculture Code,  s13.002, which 
provides the Texas Department of Agriculture with the authority to enforce the 
provisions of Chapter 13, Texas Agriculture Code, concerning the sale and use of 
weights and measures and to supervise all weights and measures sold in this 
state.
sec.15.24. Requirements for Registered Servicemen.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 22, 1992.
TRD-9201083
Dolores Alvarado Hibbs
Chief Administrative Law Judge
Texas Department of Agriculture
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-7583
       
TITLE 16. ECONOMIC REGULATION
Part II. Public Utility Commission of Texas
Chapter 23. Substantive Rules
Customer Service and Protection
16 TAC sec.23.51
The Public Utility Commission of Texas proposes an amendment to sec.23.51, 
concerning allowing level and average billing plans for submetered dwelling 
units. The proposed amendment will allow elderly and chronically ill tenants 
living on fixed incomes, who choose to participate in the level and average 
billing plans, to avoid high summer and winter electric bills. Under the average 
payment plan requested the 12-month averaging of bills would come from the 
tenant's history in each individual dwelling unit and would be updated with each 
month's billing. Each tenant's bills would adjust a small amount, each month, 
depending on the most recent billing. On the anniversary date of each lease, the 
account: would be brought up-to-date and then automatically start over with 
lease renewal. Alternately, under a level payment plan eligible tenants would 
pay on a monthly basis a fixed billing rate one-twelfth of that tenant's 
estimated annual consumption at the appropriate rates, with provisions for 
quarterly adjustments as may be determined based on actual usage.
Utilization of the proposed plan would be optional to both the owner and to each 
individual resident within the complex. Additionally, no interest charges would 
be included in the billings; any seasonal overcharges or undercharges would be 
carried by the owner of the complex.
The proposed billing methods supplements, rather than supplants, the collection 
methods set forth in subsection (e)(1)(G). The method of bill calculation will 
remain unchanged. As presently required, owners and managers will continue to be 
precluded from recovering more than the actual amount in which they are billed 
by the utility company. This rule change will provide owners merely with 
alternative methods of collection which will allow tenants to pay a fixed amount 
each month. This will insure tenants against fluctuating electric bills. The 
proposed rule would be entirely voluntary and identical to what is currently 
available to electric utilities. This method is encouraged of utilities and 
should be extended to residents of submetered dwelling units.
Mr. Thomas L. Brocato, assistant general counsel, has determined that for the 
first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section.
Mr. Brocato also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be the availability of a billing method that will protect elderly 
and chronically ill tenants living on fixed incomes against fluctuating electric 
bills. There will be a no effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the section as 
proposed.
Mr. Brocato also has determined that for each year of the first five years the 
section is in effect there will be no impact on employment in the geographical 
areas affected by the implementing the requirements of the section.
Comments on the proposal (13 copies) may be submitted to Mary Ross McDonald, 
Secretary of the Commission, Public Utility Commission of Texas, 7800 Shoal 
Creek Boulevard, Suite 232S, Austin, Texas 78757. Comments should be submitted 
within 30 days after publication of the proposed section and should refer to 
Project Number 10843.
The amendment is proposed under Texas Civil Statutes, Article 1446d, which 
provide the Public Utility Commission of Texas with the authority to make and 
enforce the rules reasonably required in the exercise of its powers and 
jurisdiction over submetering.
sec.23.51. Utility Submetering.
(a)-(b) (No change).
(c)  Billing. All rental agreements between the owner and the tenants shall 
clearly state that the dwelling unit is submetered, that the bills will be 
issued thereon, that electrical consumption, water consumption, or wastewater 
charges based on water consumption for all common areas and common facilities 
will be the responsibility of the owner and not of the tenant, and that nay 
disputes relating to the computation of the tenant's bill and the accuracy of 
the submetering device will be between the tenant and the owner. Each owner 
shall provide a tenant, at the time the lease is signed, a copy of this section 
or a narrative summary as approved by the commission to assure that the tenant 
is informed of his rights and the owner's responsibilities under this section of 
the substantive rules.
(1)-(6) (No change.)
<nl>(7) Level and average payment plan. Owners with seasonal usage or seasonal 
demands are encouraged to offer a level payment Plan or average payment plan to 
elderly or chronically ill tenants who may be on fixed incomes and to other 
tenants having similarly unique financial needs.
<nl>(A) The payment plan may be one of the following methods:
<nl>(i) a level payment plan allowing eligible tenants to pay on a monthly basis 
a fixed billing rate of one-twelfth of that tenant's estimated annual 
consumption at the appropriate rates, with provisions for quarterly adjustments 
as may be determined based on actual usage;
<nl>(ii) <nl>an average payment plan allowing tenants to pay on a monthly basis 
one-twelfth of the sum of that tenant's current months' consumption plus the 
previous 11 month's consumption (or an estimate thereof, for a new customer) at 
the appropriate customer class rates, plus a portion of any unbilled balance. 
Provisions for annual adjustments as may be determined based on actual usage 
shall be provided. If at the end of a year the owner determines that he has 
collected an amount different than he has been charged by the utility, the owner 
must refund any overcollection and may surcharge any undercollection over the 
next year.
<nl>(B) Under either of the plans outlined in section subparagraph (A) of this 
paragraph the owner is prohibited from charging the tenant any interest that may 
accrue. Any seasonal overcharges or undercharges will be carried by the owner of 
the complex.
<nl>(C)  If a tenant does not fulfill the terms and obligations of a level 
payment agreement or an average payment plan, the owner shall have the right to 
disconnect service to that tenant pursuant to the disconnection rules provided 
elsewhere in these sections.
<nl>(D) The owner may collect a deposit from all tenants entering into level 
payment plans or average payment plans: the deposit will not exceed an amount 
equivalent to one-sixth of the estimated annual billing. Notwithstanding any 
other provision in these sections, the owner may retain said deposit for the 
duration of the level or average payment plan; however, the owner shall pay such 
interest on the deposit as is provided elsewhere in these sections.
(d)-(e) (No change).
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 23, 1992.
TRD-9201116
Mary Ross McDonald
Secretary of the Commission
Public Utility Commission of Texas
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 458-0100
       
TITLE 19. EDUCATION
Part II. Texas Education Agency
Chapter 61. School Districts
Subchapter B. Waivers and Exemptions
19 TAC sec.61.30
The Texas Education Agency (TEA) proposes an amendment to sec.61.30, concerning 
waivers and exemptions. Senate Bill 351, 72nd Legislature, moved the authority 
for general waivers from the board to the commissioner of education. The 
legislation, however, continued to place the authority to adopt rules concerning 
textbook waivers with the State Board of Education. Therefore, sec.61. 30 must 
be amended to include these new statutory requirements.
Julian Shaddix, associate commissioner, field services, has determined that for 
the first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section.
Mr. Shaddix and Criss Cloudt, director for policy planning and evaluation, have 
determined that for each year of the first five years the section is in effect 
the public benefit anticipated as a result of enforcing the section will be the 
implementation of statutory requirements relating to textbook waivers. There 
will be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the section as proposed.
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed section submitted in accordance 
with the Administrative Procedure and Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the section has been published in the  Texas Register.
The amendment is proposed under the Texas Education Code, sec.11.273, which 
provides the State Board of Education with the authority to adopt rules relating 
to the granting of textbook waivers to school districts.
sec.61.30. Waivers and Exemptions from Rules or Laws.
(a)  [General provisions.] In accordance with the Texas Education Code, 
sec.11.273, the <nl>commissioner of education<ol> [State Board of Education] may 
grant <nl>textbook<ol> waivers [and exemptions] to local school districts and 
campuses.
(b) [Requirement for a written plan.] <nl>A school district or campus shall 
apply for a waiver to use a textbook that is not included on the state- adopted 
multiple list. A waiver under this section shall be for the same number of years 
for which the textbooks for the subject or course are adopted by the State Board 
of Education. To qualify for the waiver and receive state funds, the school 
district or campus shall apply by March 1 preceding the first year of the state-
adopted textbook cycle for that subject or course. This deadline is extended to 
April 1, 1992, for the 1991-1992 school year only. <ol> Each request for a 
<nl>textbook<ol> wavier by a local school district or campus under this section 
must contain the following components:
(1) a section that includes the local goals and/or achievement objectives<nl>, 
how each of the textbooks on the state-adopted multiple list inhibits student 
achievement, and how the textbook presented in the waiver request will enhance 
student achievement<ol> [, the statute or rule that inhibits student 
achievement, and how student achievement is inhibited by this requirement or 
prohibition];  <nl>and
[(2) a section that describes the proposed plan to be implemented in lieu of the 
current requirement;
[(3) a section that describes how the waiver will remove the inhibitions to 
student achievement; and
[(4) a section that describes how the district or campus will determine whether 
the proposed waiver is successful in removing the inhibitions;]
<nl>(2) <ol>[(5)] a section that describes and verifies <nl>that<ol> [how] the 
requirements of this section [are] were carried out through either the 
appropriate campus <nl>and/or <ol> district level decision process required by 
the Texas Education Code, sec.21.7532 and sec.21.930. [This paragraph will 
become effective September 1, 1991.]
[(c) Textbook waivers. A school district or campus shall apply for a waiver to 
use a textbook that is not included on the state-adopted multiple list. A waiver 
under this section shall be for the same number of years for which the textbooks 
for the subject or course are adopted by the State Board of Education.
[(1) To qualify for the waiver and receive state funds, in addition to the 
filing of the written plan required in subsection (b) of this section, the 
school district or campus shall apply by March 1 preceding the first year of the 
state-adopted textbook cycle for that subject or course.]
<nl>(c)<ol>[(2)] <nl>The application submitted by<ol> [In addition to the 
written plan required by subsection (b) of this section,] a school district or 
campus shall provide the following information:
<nl>(1)<ol>[(A)]  assurance of a six-year life expectancy of the textbook;
<nl>(2) <ol>[(B)] coverage of essential elements by the textbook and sources of 
supplementary materials to address essential elements not covered by the 
textbook to ensure compliance with the Texas Education Code, sec.11.273(e)(1);
<nl>(3)<ol>[(C)] involvement of campus instructional staff in the selection of 
the textbook.
<nl>(d)<ol>[(3)] Upon approval of the waiver, the school district or campus 
shall purchase the textbook.
<nl>(e) <ol>[(4)] The school district shall provide selected textbooks not on 
the state-adopted multiple list in special formats, such as, but not limited to, 
Braille, large print, audio, and Spanish language as required by law if they are 
needed by any students in the district who would use the textbook.
<nl>(f) <ol>[(5)] Student performance using the textbooks shall be reviewed on 
an annual basis using student testing and other performance data to determine 
whether the textbook is fulfilling the achievement objectives submitted to the 
<nl>commissioner <ol> [board] pursuant to the Texas Education Code, 
sec.11.273(b).
<nl>(g) Not more than (1.0%) of the state's annual budget for purchasing new 
textbooks will be allocated to fund textbooks requested through a waiver. The 
commissioner of education shall have the discretion to make the necessary 
adjustments to this limitation in order to address special circumstances 
resulting from waiver requests from large school districts.
<nl>(h)  Criteria used to evaluate and approve textbooks waiver requests shall 
include the following:
<nl>(1) a clear demonstration by the district that the proposed alternative 
textbook will result in significant improvement of student performance;
<nl>(2) a clear designation of special student groups to be served, such as 
special campuses, academic groupings, selected grade levels, specific student 
populations; and
<nl>(3) other locally defined circumstances that address unique needs of the 
district or campus.
<nl>(i) Textbooks submitted for consideration but denied inclusion on the state-
adopted multiple list will not be eligible for adoption under the waiver 
criteria. All publishers will be informed that if they submit a book for 
consideration by a textbook adoption committee and are denied inclusion on the 
state-adopted multiple list, their books will not be eligible for adoption 
through the waiver process.
<nl>(j) All textbooks submitted for approval under a waiver request must be in 
general publication and cannot be in any type of pre-publication format at the 
time of the application.
<nl>(k) If the State Board of Education does not include a textbook title for a 
subject or course which is eligible to receive a new textbook adoption, no 
waiver will be allowed in that area.
<nl>(l) If a district or campus orders textbooks from the state-adopted multiple 
list during an adoption cycle for a specific subject or course, the district or 
campus will not be eligible to receive state funding for a textbook waiver in 
that category for the life of that adoption.
<nl>(m) The commissioner of education shall provide the State Board of Education 
a report of all textbook waivers requested and granted.
<nl>(n)<ol>[(6)] Nothing in this <nl>section<ol> [rule] shall restrict the 
authority of a school district to purchase textbooks not adopted by the State 
Board of Education pursuant to the Texas Education Code, sec.12.01(d).
<nl>(o)<ol>[(d)  Exemptions.] Pursuant to the Texas Education Code, 
sec.11.273(d), a district <nl>or campus <ol> may be granted an exemption from a 
requirement or prohibition imposed by law or regulation, excluding textbook 
requirements, if:
(1) the district <nl>or campus <ol> has been granted a waiver of the requirement 
or prohibition for a consecutive three-year period; and
(2)  the campus or district has fulfilled the achievement objectives submitted 
to the board pursuant to the Texas Education Code, sec.11.273(b).
<nl>(p) <ol>[(e) Assurances.] For any application, waiver or exemption request 
set forth in subsections (a)- <nl>(o)<ol>[(d)] of this section, each district or 
campus shall provide assurances that the requested waivers or exemptions do not 
apply to subjects and tasks in the Texas Education Code, sec.11.273(e)(1)-(12).
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200989
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
Subchapter G. School Facilities
19 TAC sec.sec.61.91-61.94
The Texas Education Agency (TEA) proposes new sec.sec.61.91-61.94, concerning 
emergency facility grant funds. The new sections implement policies governing 
the allocation of emergency facility grant funds.
Joe Wisnoski, senior director, resource planning and reports division, has 
determined that for the first five-year period the sections are in effect there 
will be fiscal implications as a result of enforcing or administering the 
sections. The effect on state government for the first five-year period will 
include the cost of hiring additional personnel to administer the grants as well 
as the $50 million cost of the grants themselves. In addition, the agency is 
also responsible for the development of standards for facilities. Project 
personnel needed to implement these new programs include two architects with 
experience in the area of school construction at a cost of approximately $84,000 
per year. This includes salaries, fringe benefits, rent, and phone. An 
additional $5,000 will be required in the first year to purchase furniture and 
computer equipment. This amount will be realized from a reduction of two 
positions in another agency function. The effect on local government (school 
districts) for the first five-year period will be the cost of the required 
matching grants necessary to qualify for state funds. The estimated amount of 
the matching grants is $50 to $100 million in local funds. However, districts 
are not under an obligation to in the program. To achieve the same results 
without the program, it is presumed that districts would have incurred $50 
million in additional expenses. There will be no fiscal implications for small 
businesses.
Mr. Wisnoski and Criss Cloudt, director for policy planning and evaluation, also 
have determined that for each year of the first five years the sections are in 
effect the public benefit anticipated as a result of enforcing the sections will 
be buildings which are safer for students and teachers provided at reduced cost 
to districts with limited financial resources. There is no anticipated economic 
cost to persons who are required to comply with the proposed sections.
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed sections submitted in accordance 
with the Administrative Procedure and Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the sections has been published in the  Texas Register.
The new sections are proposed under the Texas Education Code, sec.15.16(b), 
which provides the State Board of Education with the authority to establish 
procedures and qualifications for school districts who wish to obtain a 
facilities emergency grant.
sec.61.91. Definitions.  The following words and terms, when used in this 
subchapter, shall have the following meanings, unless the context clearly 
indicates otherwise.
 Imminent threat -An immediate danger to students and staff due to either 
current exposure or high risk of exposure in emergency situation. Examples 
include, but are not limited to, exposed electrical hazards, current exposure to 
toxic chemicals through daily use in an unsafe environment, structural damage 
that endangers the immediate integrity of the building, and blind corridors 
posing a substantial threat in emergency exit situations. Examples would not 
include: failure of pre-existing buildings to meet safety standards for new 
buildings, asbestos abatement under a pre- existing abatement plan, inadequate 
handicap accessibility.
 Project-A set of activities to repair, renovate, or add to existing facilities 
to address a specific, limited need. As an example, the addition of vent hoods 
in the chemistry labs would be considered a project. Within the same building, 
the addition of fire escapes for exit from a blind corridor would be considered 
a separate project. Districts may propose multiple projects per building.
sec.61.92. Project Categorization.
(a) Each project will be categorized into one of the following groups based on 
information provided by the district:
(1) Category 1: imminent health and safety in an area where instruction takes 
place on a regular basis during the day;
(2)  Category 2: imminent health and safety in instructional support area;
(3) Category 3: imminent health and safety in noninstructional area;
(4) Category 4: additional instructional space requirement;
(5)  Category 5: health and safety concern, not imminent or in other areas;
(6) Category 6: other.
(b) Projects will be eligible for funding based on the categories listed in 
subsection (a) of this section. Only after all project needs have been funded in 
Category 1 will projects in subsequent categories be considered for funding.
(c) Projects without sufficient supporting documentation of need may be 
categorized as "other." Documentation should be from a professional with 
responsibility for assessment of the particular condition. Examples include, but 
are not limited to, citations in accreditation reports, receipt of waivers for 
class size limits, written assessments by a registered engineer or licensed 
architect, and written citation for a local or state fire safety official.
sec.61.93. Project Prioritization.
(a) Projects within each category will be given a priority based on three 
factors:
(1) district rank of average total effective tax rate from 1990-1992; defined as 
tax levy or tax collections divided by the State Property Tax Board value used 
in state aid distribution in those years. This factor will receive a weight of 
20%;
(2)  district rank of property wealth per weighted student in the 1991- 1992 
school year; defined as the State Property Tax Board value used in state aid 
distribution in that year divided by the number of weighted students for 
guaranteed yield purposes. This factor will receive a weight of 50%;
(3)  district rank of growth rate of 1989-1990 through 1994-1995, defined as the 
projected average daily attendance for 1994-1995 divided by the attendance in 
1989-1990. This factor will receive a weight of 30%.
(b) These rankings will each be rated to create a composite score for the 
district. The composite score will be the result of the formula: .2(rank of tax 
rate)+.5(rank of district wealth)+.3(rank of growth rate). The composite scores 
will then be rank ordered to determine priorities for funding projects.
sec.61.94. General Requirements.
(a) The facilities emergency grants will be administered on a shared basis in 
the same manner as the foundation school program.
(b) The amount of award will depend on the project cost and the wealth of the 
school district. Districts will share in the cost of projects in relationship to 
the ability to generate funds under the guaranteed yield formula for 1992-1993.
(c) The percentage of project cost to be funded by the school district will be 
determined by the following formula (1-((District Total Property Value for 
Guaranteed Yield/District Weighted Students for Guaranteed Yield)/10000)/22.50). 
This formula provides that the local share of the project cost will be based on 
the state guaranteed yield level, and will result in a formula that requires 
districts to pay a higher percentage of the project cost as district wealth 
increases.
(d)  There are not limits proposed on the amount of award for a single project 
or to a single district.
(e) Districts will have until August 31, 1993, to raise their local share of 
project cost. Grants will be funded upon certification of the local share by the 
district.
(f) Projects funded under this program must be completed by February 28, 1995. 
Funds granted must be used for the projects for which the grants were made.
(g) School districts must apply for funding no later than a date set by the 
commissioner. Documentation of need for the proposed project will be required.
(h)  Upon review and stratification of projects according to the categories and 
priorities listed in this section, districts will be notified of the awards by 
the commissioner.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200990
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
Chapter 67. Instructional Resources
Subchapter A. State Textbook Program
State Adoption, Acquisition, and Custody of Textbooks
19 TAC sec.67.85
The Texas Education Agency (TEA) proposes an amendment to sec.67.85, concerning 
instructional resources. The amendment implements changes to the textbook 
adoption and distribution process.
Dr. Thomas Anderson, deputy commissioner for school support services, has 
determined that for the first five-year period the section is in effect there 
will be no fiscal implications for state or local government as a result of 
enforcing or administering the section.
Dr. Anderson and Criss Cloudt, director, policy planning and evaluation, also 
has determined that for each year of the first five years the section is in 
effect the public benefit anticipated as a result of enforcing the section will 
be implementation of policies that strive to ensure that students throughout the 
state receive error-free textbooks. The effect on fiscal implications for small 
businesses will be dependent on those situations in which the commissioner 
requires an independent editor. A small publisher would experience additional 
costs in this situation; however, the additional cost would only be incurred if 
substantial errors are found, and there is no basis for estimating how 
frequently errors will be made by publishers. There is no anticipated economic 
cost to persons who are required to comply with the section as proposed.
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed section submitted in accordance 
with the Administrative Procedure and Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the sections has been published in the  Texas Register.
The amendment is proposed under the Texas Education Code, sec.12.16, which 
provides the State Board of Education with the authority to implement rules 
under which textbooks are adopted and introduced in the public schools of the 
state.
sec.67.85. Procedures Governing Violations of the Statutes of the Rules, 
Procedural Irregularities, [or] Failure to Meet Established [Deadlines.]<nl>. 
Deadlines, and Errors in Textbooks and Systems.
(a)-(d) (No change.)
<nl>(e) An error is:
<nl>(1) a verifiable mistake in a matter of fact;
<nl>(2) a defect, such as a misspelled word, typographical error, or 
inconsistency between a student edition and its teacher education; and
<nl>(3) any other error which, as determined by the commissioner of education, 
prevents a textbooks or system from being classroom ready.
<nl>(f) Upon discovery of errors other than those in the publisher's hand-
corrected copies, the commissioner of education may require the publisher to 
retain at the publisher's expense an independent editor, subject to the 
commissioner's approval, to review the textbook and or system. The independent 
editor shall provide the commissioner with a list of corrections (in addition to 
those identified in the hand-corrections) necessary to make the textbook or 
system free of errors and/or to certify that the textbook or system is free of 
errors and is classroom ready.
<nl>(g) A publisher may be subject to a penalty as determined by the 
commissioner of education for any error confirmed by agency staff which is 
discovered after a publisher's hand-corrected copies of textbooks and/or systems 
have been filed according to the scheduled in the proclamation. The commissioner 
of education may impose penalties in increments to be determined by the 
commissioner based on the number of errors.
<nl>(h) If a textbook or system submitted for consideration is found to contain 
significant errors as defined in subsection (e) of this section which were not 
identified in the hand-corrected sample, the commissioner of education may 
recommend that said textbook or system not be eligible for adoption by the State 
Board of Education.
<nl>(i) If, subsequent to adoption and during the first two years of use, the 
commissioner of education determines that any adopted textbooks or systems 
contain significant errors as defined in subsection (e) of this section, said 
textbooks or system components shall be revised to correct the errors and 
replaced in schools by the publisher at no cost to the state.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200987
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
Chapter 75. Curriculum
Subchapter H. Promotion and Alternatives to Social Promotion
19 TAC sec.75.191
The Texas Education Agency (TEA) proposes an amendment to sec.75.191, concerning 
grading and reporting requirements. Senate Bill 1, 71st Legislature, requires 
the State Board of Education (SBOE) to reconsider all rules affected by this 
provision so that any rules adopted on these matters must occur under the new 
rule-making relationship between the SBOE and the Legislative Education Board. 
The review of the rules is to be conducted over a three-year period. All 
sections of Chapter 133, Pupil-School Relations, have been reviewed by the board 
and are being repealed in a separate submission. A new Chapter 133 is being 
proposed in a separate submission. However, former sec.133.41, Prohibited 
Withholding, is being reproposed as an amendment to Chapter 75 to more 
approximately locate the section will rules relating to grading and reporting 
requirements.
Marvin Veselka, associate commissioner for curriculum and assessment, has 
determined that for the first five-year period the section is in effect there 
will be no fiscal implications for state or local government as a result of 
enforcing or administering the section.
Mr. Veselka and Criss Cloudt, director for policy planning and evaluation, have 
determined that for each year of the first five years the section is in effect 
the public benefit anticipated as a result of enforcing the section will be a 
clearer more concise statement of the agency's rule authority. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the section as proposed.
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed section submitted in accordance 
with the Administrative Procedure and Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the section has been published in the  Texas Register.
The amendment is proposed under Senate Bill 1, sec.2.25, passed by the 71st 
Legislature, Sixth Called Session, which provides the State Board of Education 
with the authority to review all rules, other than portions of Chapter 75 of 
this title, relating to public education.
sec.75.191. Grading and Reporting Requirements.
(a)-(h) (No change.)
<nl>(i) A pupil's report cards or records shall not be withheld because of 
unpaid compulsory, school district assessed, fees or charges which are not 
authorized by law.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200978
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 3, 1992
For further information, please call: (512) 463-9701
       
Subchapter K. Extracurricular Activities
19 TAC sec.75.411, sec.75.412
The Texas Education Agency (TEA) proposes new sec.75.411 and sec.75.412, 
concerning extracurricular activities for students. Senate Bill 1, 71st 
Legislature, requires the State Board of Education (SBOE) to reconsider all 
rules affected by this provision so that any rules adopted on these matters must 
occur under the new rule-making relationship between the SBOE and the 
Legislative Education Board. The review of the rules is to be conducted over a 
three-year period. Section 97.113 and sec.97.115 in Chapter 97, Planning and 
Accreditation, have been reviewed by the board and are being repealed in a 
separate submission. The sections are being reproposed in Chapter 75 to more 
appropriately locate them with rules relating to grading and reporting 
requirements. The remaining sections of Chapter 97 are scheduled to be reviewed 
by the board during February 1992 and will published at that time.
Mr. Marvin Veselka, associate commissioner for curriculum and assessment, has 
determined that for the first five-year period the sections are in effect there 
will be no fiscal implications for state or local government as a result of 
enforcing or administering the sections.
Mr. Veselka and Criss Cloudt, director for policy planning and evaluation, have 
determined that for each year of the first five years the sections are in effect 
the public benefit anticipated as a result of enforcing the sections will be a 
clearer more concise statement of the agency's rule authority. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the sections as proposed.
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed sections submitted in accordance 
with the Administrative Procedure and Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the sections has been published in the  Texas Register.
The new sections are proposed under Senate Bill 1, sec.2.25, passed by the 71st 
Legislature, Sixth Called Session, which provides the State Board of Education 
with the authority to review all rules, other than portions of Chapter 75 of 
this title, relating to public education.
sec.75.411. Student Absences for Extracurricular or Other Activities.
(a) School districts shall not schedule, nor permit students to participate in, 
any school related or sanctioned activities on or off campus that would require, 
permit, or allow a student to be absent from class in any course more than 10 
times during the 175-day school year (full-year course). Noninstructional school 
activities must be held outside of minimum 55-minute scheduled academic class 
periods in grades nine-12, 45-minute scheduled academic class periods in grades 
seven-eight, and six hours of academic class periods in grades four-six, or be 
included in one of the six allowable shortened schedules referred to in  s105.71 
of this title (relating to Days of Operation Required).
(b) A school district shall inform the commissioner of education of specific 
exceptions to the 10 absences limitation stated in subsection (a) of this 
section on behalf of individual students who are competing in UIL-sponsored 
activities. This exception must be based on circumstances which are unforeseen 
and which result from the students earning the right to compete at post-UIL-
district levels. Exceptions shall not exceed a total of five additional absences 
per year. Participants in post-district competitions sponsored by other 
organizations approved by the commissioner of education shall also be eligible 
for exceptions in accordance with this subsection. Exceptions will not be 
granted just to allow students who have not earned the right to compete at the 
post-district level to participate in more district-level activities than 
permitted under the 10 absences limitation.
(c) A student in grades seven-12 may participate in extracurricular activities 
on or off campus at the beginning of the school year only if the student has 
earned the cumulative number of credits in state-approved courses indicated in 
this subsection:
(1) beginning at the seventh grade year-have been promoted from the sixth grade 
to the seventh;
(2) beginning at the eighth grade year-have been promoted from the seventh grade 
to the eighth;
(3)  beginning at the ninth grade year-have been promoted from the eighth grade 
to the ninth;
(4) beginning of the 10th grade year-at least five credits toward graduation;
(5) beginning of the 11th grade year-at least nine credits toward graduation for 
the 1985-1986 school year and 10 credits each year thereafter; and
(6) beginning of the 12th grade year-at least 13 credits toward graduation for 
the 1985-1986 school year, at least 14 credits for the 1986-1987 school year, 
and 15 credits each year thereafter.
(d) In order to be eligible to participate in an extracurricular activity event 
for a six-week period following the initial six weeks period of a school year, a 
student must not have a recorded grade average lower than 70 on a scale of 0 to 
100 in any course for that preceding six weeks period.
(e) A student whose recorded six weeks grade average in any course is lower than 
70 at the end of a six-week period shall be suspended from participation in any 
extracurricular activity event during succeeding six week periods until the end 
of a six-week period during which such student achieves a course grade average 
for that six weeks of at least 70 in each course, except the campus principal 
may remove this suspension if the class is identified as an honors class under 
the criteria stated in sec.75.152(d) of this title (relating to Advanced High 
School Program), or advanced class as follows:
(1) English language arts: English IV Academic (composition), English IV 
Academic (British Literature) , World Literature, Creative/Imaginative Writing, 
Research/Technical Writing, Debate III, Public Speaking III;
(2) other languages: Other Languages III, Advanced Languages I-IV;
(3) social studies: Advanced Social Science Problems;
(4) fine arts: Art IV, Theatre Arts IV, Band IV, Orchestra IV, Choral Music IV, 
Stage Band IV, and Music Theory I-II;
(5) mathematics: Trigonometry, Elementary Analysis, Analytic Geometry, Pre-
Calculus, Linear Algebra, Calculus; and
(6) science: Physics, Physics II, Chemistry II, Biology II.
(f) For the 1984-1985 school year, suspensions shall begin with the second six 
weeks period of the spring semester based on a students earning a grade lower 
than 70 in any course taken during the first six weeks of the spring semester. 
Such suspension shall become effective seven days after the last day of the six 
weeks period during which the grade lower than 70 was earned.
(g) A student who has been suspended from extracurricular activity events 
pursuant to subsections (e) and (f) of this section shall also be suspended from 
out-of-school practice in such extracurricular activities until such suspension 
from participation has been lifted.
(h) At the end of any six weeks period in which a student has attained a course 
grade average for that six weeks of 70 or more in each course taken, any 
suspension from participating in extracurricular activities and/or suspension of 
out-of-school practice of extracurricular activities shall be removed.
(i) All UIL-sponsored activities are sanctioned as school-related activities and 
therefore come under the provisions of this section. The governing boards at the 
highest state level of any other organizations requiring student participation 
which causes a student to miss a class during the school day must request 
approval, in writing, from the commissioner of education. If approval of the 
organization is granted and the local board of trustees concurs, student 
participation in the organization's activities will be subject to all provisions 
of this section. If approval is not granted, any absences incurred by the 
student will be considered unexcused.
(j) School districts shall develop a policy which implements this section, 
including a provision regulating the number of times a student may be absent 
pursuant to subsection (a) of this section during any one semester course.
(k) Limitations on practice and performance shall be as follows.
(1) School districts shall adopt policies limiting extracurricular activities 
from the beginning of the school week through the end of the school week 
(excluding holidays) by scheduling no more than one contest or performance per 
activity per student and by limiting practice outside the school day to a 
maximum of eight hours per school week per activity except as specified in 
paragraph (2) of this subsection. For schools with limited facilities, 
exceptions may be made to the one contest or performance per activity by the 
commissioner of education. The rule concerning scheduling one contest or 
performance per activity per student per school week shall be effective 
September 1, 1985.
(2) Tournaments and post-season competition, as well as contests postponed by 
weather or public disaster, may also be scheduled during the school week. This 
subsection shall apply only to the University Interscholastic League and other 
organizations sanctioned by the Central Education Agency in accordance with 
subsection (i) of this section.
(1)  At the end of the first three weeks of a grading period, the school 
district shall send notice of progress to the parent or guardian of a student 
whose grade average in any class is lower than 70 or whose grade average is 
deemed borderline by the district. The district shall make such information 
available to sponsors of extracurricular activities in which the student 
participates. The notice should stipulate that the student will have the 
remainder of the six weeks period to bring the grade up to 70 or above and that 
the student will be suspended from extracurricular activities if the grade is 
not brought up to 70 or above by the end of the six weeks period. The district 
may require any student who falls within this subsection to attend tutorial 
sessions.
(m)  Definitions of "curricular," "cocurricular," and "extracurricular" 
activities shall be as follows.
(1) Curricular activities occur within the regular school day and constitute the 
delivery of instruction as specified in this chapter.
(2) Cocurricular activities are an extension of classroom instruction in which 
participation is by the entire class or a significant portion thereof. They 
relate directly to and enhance student learning of essential elements through 
participation, demonstration, illustration, and observation. Cocurricular 
activities are included in the teacher's instructional plan and are conducted by 
or supervised by a classroom teacher or other educational professional such as a 
librarian, school nurse, counselor, or administrator. Subsection (e) of this 
section shall not prevent students from participating in after-school 
cocurricular activities. Absences for participation in cocurricular activities 
that require a student to miss a class other than the sponsoring class or course 
shall be counted under the 10-day rule.
(3)  Extracurricular activities are school-sponsored activities which are not 
directly related to instruction of the essential elements, but they may have an 
indirect relation to some areas of the curriculum. They offer worthwhile and 
significant contributions to a student's personal, physical, and social 
development. Participation in extracurricular activities is a privilege and not 
a right, and students must meet specific requirements in order to participate. 
Activities may include, but are not limited to, performance, contests, 
demonstrations, displays, and club activities.
(n) For the fourth six-week period in the 1984-1985 school year only, a student 
may participate in extracurricular or other activities on or off campus that 
require absences from one or more classes only if:
(1) the student has and maintains a 70 average or better in at least four of the 
courses in which that student is enrolled for the prior and current semester;
(2)  that student does not miss any class in which the student does not have and 
maintain at least a 70 average; and
(3) only courses approved for state graduation credit by the State Board of 
Education may be counted toward the number in which the student must have and 
maintain a 70 average or better. Courses in physical education or competitive 
athletics may not be counted.
(o) For the fourth six-week period in the 1984-1985 school year only, students 
shall be eligible to participate in University Interscholastic League activities 
in accordance with current University Interscholastic League rules and this 
subsection.
(1) The student is eligible to participate in a league varsity contest as a 
representative of a participant school if he or she meets current University 
Interscholastic League requirements and the following:
(A) the student has attended more than one-half of the preceding semester and 
passed at least four one-half credit courses, including at least three separate 
courses, as required by the University Interscholastic League constitution and 
contest rules, sec.411, as it was in effect for the fall semester of the 1984-
1985 school year;
(B) the student is passing at least four one-half credit courses or the 
equivalent, including at least three separate courses, as required by the 
University Interscholastic League constitution and contest rules, sec.412, as it 
was in effect for the fall semester of the 1984-1985 school year.
(2) To determine if a student is passing at least four one-half credit courses, 
the student's work from the beginning of the semester to seven days before the 
contest (or 30 days before a music contest) in which the student intends to 
participate must be considered.
sec.75.412. Competitive Athletics During the School Day. <ol> Schools limit 
individual students to one period during the regularly scheduled school day for 
practice of interschool competitive athletics and for programs in which body 
conditioning, training, or other activities in one of the team sports is the 
objective of the teacher and students.
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 January 15, 1992.
TRD-9200979
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Effective date: February 12, 1992
Proposal publication date: November 8, 1991
For further information, please call: (512) 463-9701
       
Chapter 97. Planning and Accreditation
Subchapter D. Additional Accreditation Regulations
Additional Accreditation Regulations
19 TAC sec.97.113, sec.97.115
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.)
The Texas Education Agency (TEA) proposes the repeals of  s97.113 and 
sec.97.115, concerning planning and accreditation. Senate Bill 1, 71st 
Legislature, requires the State Board of Education (SBOE) to reconsider all 
rules affected by this provision so that any rules adopted on these matters must 
occur under the new rulemaking relationship between the SBOE and the Legislative 
Education Board. The review of the rules is to be conducted over a three-year 
period. Section 97.113 and sec.97.115 have been reviewed by the board and are 
being repealed and reproposed in Chapter 75 to more appropriately locate them 
with rules relating to grading and reporting requirements. The remaining 
sections of Chapter 97 are scheduled to be reviewed by the board during February 
1992 and will be published at that time.
Criss Cloudt, director, policy planning and evaluation, has determined that for 
the first five-year period the repeals are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the repeals.
Ms. Cloudt also has determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of enforcing 
the repeals will be a clearer, more concise statement of the agency's rule 
authority. There will be no effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the repeals as 
proposed.
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed repeals submitted in accordance 
with the Administrative Procedure and Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the section has been published in the  Texas Register.
The repeals are proposed under Senate Bill 1, sec.2.25, passed by the 71st 
Legislature, Sixth Called Session, which provides the State Board of Education 
with the authority to review all rules, other than portions of Chapter 75 of 
this Title 19, Texas Administrative Code, relating to public education.
sec.97.113. Student Absences for Extracurricular or Other Activities.
sec.97.115. Competitive Athletics During the School Day.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200988
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 3, 1992
For further information, please call: (512) 463-9701
       
Chapter 133. Pupil-School Relations
The Texas Education Agency (TEA) proposes the repeal of  ssec.133.1, 133. 21-
133.28, 133.41, 133.61, 133.101, 133.121 and 133.122, concerning pupil-school 
relations. Senate Bill 1, 71st Legislature, requires the State Board of 
Education (SBOE) to reconsider all rules affected by this provision so that any 
rules adopted on these matters must occur under the new rule-making relationship 
between the SBOE and the Legislative Education Board. The review of rules is to 
be conducted over a three-year period. All sections of Chapter 133 have been 
reviewed by the board and are being repealed. A new Chapter 133 is being 
proposed in a separate submission.
Criss Cloudt, policy planning and evaluation, has determined that for the first 
five-year period the repeals are in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
repeals.
Criss Cloudt also has determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of enforcing 
the repeals will be a clearer more concise statement of the agency's rule 
authority. There will be no effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the repeals as 
proposed.
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed repeals submitted in accordance 
with the Administrative Procedure and Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the section has been published in the  Texas Register.
Subchapter A. General Welfare of Pupils
19 TAC sec.133.1
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.)
The repeal is proposed under Senate Bill 1, sec.2.25, passed by the 71st 
Legislature, Sixth Called Session, which provides the State Board of Education 
with the authority to review all rules, other than portions of Chapter 75 of 
this title, relating to public education.
sec.133.1. Responsibility.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200981
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
Subchapter B. Discipline Management
19 TAC sec.sec.133.21-133.28
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.)
The repeals are proposed under Senate Bill 1, sec.2.25, passed by the 71st 
Legislature, Sixth Called Session, which provides the State Board of Education 
with the authority to review all rules, other than portions of Chapter 75 of 
this title, relating to public education.
sec.133.21. Notice Given by Regulations.
sec.133.22. Discipline Management Programs.
sec.133.23. Recommended Training Program.
sec.133.24. Teacher Training in Discipline Management.
sec.133.25. Implementation Time Lines.
sec.133.26. Suspension of Students: Removal to Alternative Education Programs.
sec.133.27. Expulsion.
sec.133.28. Discipline of Handicapped Students.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200982
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
Subchapter C. Pupil's Report Cards or Records
19 TAC sec.133.41
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.)
The repeal is proposed under Senate Bill 1, sec.2.25, passed by the 71st 
Legislature, Sixth Called Session, which provides the State Board of Education 
with the authority to review all rules, other than portions of Chapter 75 of 
this title, relating to public education.
sec.133.41. Prohibited Withholding.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200983
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
Subchapter D. Married Pupils
19 TAC sec.133.61
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.)
The repeal is proposed under Senate Bill 1, sec.2.25, passed by the 71st 
Legislature, Sixth Called Session, which provides the State Board of Education 
with the authority to review all rules, other than portions of Chapter 75 of 
this title, relating to public education.
sec.133.61. Rights.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200984
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
Subchapter F. Exemptions From Instruction
19 TAC sec.133.101
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.)
The repeal is proposed under Senate Bill 1, sec.2.25, passed by the 71st 
Legislature, Sixth Called Session, which provides the State Board of Education 
with the authority to review all rules, other than portions of Chapter 75 of 
this title, relating to public education.
sec.133.101. Physiology and Hygiene.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200985
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
Subchapter G. Pupil Organizations
19 TAC sec.133.121, sec.133.122
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.)
The repeals are proposed under Senate Bill 1, sec.2.25, passed by the 71st 
Legislature, Sixth Called Session, which provides the State Board of Education 
with the authority to review all rules, other than portions of Chapter 75 of 
this title, relating to public education.
sec.133.121. Prohibited Pupil Participation.
sec.133.122. Nonprohibited Pupil Participation.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200986
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
19 TAC sec.sec.133.21-133.24
The Texas Education Agency (TEA) proposes new sec.sec.133.21-133.24, concerning 
pupil-school relations. Senate Bill 1, 71st Legislature, requires the State 
Board of Education (SBOE) to reconsider all rules affected by this provision so 
that any rules adopted on these matters must occur under the new rule-making 
relationship between the SBOE and the Legislative Education Board. The review of 
the rules is to be conducted over a three-year period. All sections of Chapter 
133 have been reviewed by the board and are being repealed in a separate 
submission.
Dr. Jay Cummings, deputy commissioner for programs and instructions, has 
determined that for the first five-year period the sections are in effect there 
will be no fiscal implications for state or local government as a result of 
enforcing or administering the sections.
Dr. Cummings and Criss Cloudt, director, policy planning and evaluation, also 
have determined that for each year of the first five years the sections are in 
effect the public benefit anticipated as a result of enforcing the sections will 
be a clearer more concise statement of the agency's rule authority. There will 
be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the sections as proposed.
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed sections submitted in accordance 
with the Administrative Procedure and Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the sections has been published in the  Texas Register.
The new sections are proposed under Senate Bill 1, sec.2.25, passed by the 71st 
Legislature, Sixth Called Session, which provides the State Board of Education 
with the authority to review all rules, other than portions of Chapter 75, of 
this title relating to public education.
sec.133.21. Discipline Management Programs. Content of approved programs is as 
follows.
(1) The board of trustees shall provide in the contents of the plan for the 
following.
(A) The board of trustees shall provide in the contents of the plan the 
development of a code of student conduct that, at a minimum, includes rules, 
procedures, and expectations related to conduct and specifies the consequences 
of violating the code. The school district shall explain what it will consider 
to be "serious" and "persistent" misbehavior in its discipline management 
program and student code of conduct. The code of student conduct shall initially 
be published and distributed to all administrators, teachers, parents, and 
students. Thereafter, the code of student conduct shall be provided for each 
newly employed administrator and teacher and newly enrolled student, parent or 
guardian, and to others upon request. The discipline management plan of each 
district shall provide for procedures to communicate the provisions of the code 
of student conduct to parents and all interested parties. Changes during the 
year in the code of student conduct shall be published and distributed to 
students in a timely manner.
(B) The district shall provide annually for signed statements by each student's 
parent that the parent understands and consents to the responsibilities outlined 
in the district's student code of conduct.
(2) The district's discipline management plan shall specify who may serve as the 
student's representative, the district's hearing officer at any hearing required 
by the Texas Education Code, sec.21.301 and sec.21.3011, and shall set forth the 
district's notice and hearing procedures.
(3) The school district's outline of its alternative educational program shall 
be included in its discipline management plan.
sec.133.22. Suspension of Students: Removal to Alternative Education Programs.
(a) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise.
(1) Class disruption-Any behavior which violates the rules of a particular 
classroom and interferes with the teacher's opportunity to present material or 
the other students' opportunity to concentrate on the material or their 
assignments.
(2) Community-based alternative school-A program for students who have been 
removed from the students' assigned campus for disciplinary reasons and placed 
in an alternative education program operated by a school district in cooperation 
with other school districts, juvenile agencies, or other governmental entities.
(3)  Discipline management technique-Any action which is intended to promote 
proper behavior and/or discourage misconduct other than suspension or expulsion 
including, but not limited to, rewards and incentives, student-teacher 
conferences, parent-teacher conferences, teacher redirection of student 
behavior, negative assertion, logical consequences, setting limits, I-messages, 
student contracts, active listening, reality therapy, suspension of 
extracurricular activities, detention, etc.
(4) Expulsion-suspension of a student from school for more than six school days 
within a semester.
(5)  Home-based instruction-An unsupervised alternative education program in 
which students are provided assignments to be complete at home. Except for 
students who are provided home-based instruction pursuant to the Texas Education 
Code, sec.21.3011(h) and sec.133.23(b)(3) of this title (relating to Expulsion), 
students may not be assigned to home-based instruction or be suspended for more 
than a combined total of six school days in a semester.
(6) In-school suspension program-an on-campus setting for students who commit 
disciplinary infractions, where the student continues to receive instruction in 
each course to the extent possible.
(7) Parents-Includes single parent, legal guardian, or person in lawful control.
(8) School-based strategies-A program(s) which uses interactive strategies 
between school personnel and the community and/or state agencies to provide a 
full array of services for the prevention of or intervention in delinquent 
behavior or students. These services may include conflict resolution, 
alternative education, student assistance teams, peer jury or fairness 
committee, behavioral contracts, contingency education plans, and alternatives 
to expulsion.
(9) School-community guidance center-A program that meets the requirements for 
school-community guidance centers as specified under the Texas Education Code; 
sec.sec.21.601-21.606.
(10)  School property-Any property owned by the school district or over which 
the school district or its personnel exert lawful authority, including property 
visited by students in connection with a school-sponsored activity, such as a 
field trip or extracurricular activity.
(11) Suspension-A deprivation of educational services for disciplinary reasons 
for a period not to exceed six school days in a semester. A district may adopt a 
policy to provide students with assignments during the period of suspension. 
Such a policy shall not interfere with a teacher's ability to instruct the 
remaining students in that class. In all cases, students must be given an 
opportunity to complete assignments pursuant to the Texas Education Code, 
sec.21.301(h).
(12)  Transfer to a different school campus-The removal of a student from his or 
her assigned campus to another campus within the same school district.
(b)  Grade adjustment. A district that imposes a grade adjustment for work made 
up by a student who has been suspended shall adopt a policy that ensures 
consistent application.
(c) Emergency removal.
(1) The board of trustees or its designee may remove a student from his or her 
regular classes or from school district premises for nondisciplinary health, 
safety, or welfare reasons whenever the board or its designee determines that an 
emergency exists for doing so. Reasons which may be considered an emergency 
include, but are not limited to, the fact that the student is under the 
influence of alcohol or drugs, highly agitated, or suffering from any other 
condition which temporarily threatens his or her welfare, other individuals' 
welfare, or the efficient operation of the school. Any student who is removed 
from school premises pursuant to this subsection and who is in a condition that 
threatens his own welfare or the welfare of others must be released to the 
student's parent, a representative of the parent, or other propose authority, 
including, but not limited to, law enforcement officers and medical personnel. 
Such removal must be for as short a time as is reasonable under the 
circumstances, but is limited to five consecutive school days.
(2) The district shall make reasonable efforts to notify the parent prior to 
removing a student from school premises under this subsection. If the parent 
cannot be notified prior to removal, the parent must be notified as soon as 
possible after the removal and the reasons for it.
sec.133.23. Expulsion.
(a) Definition. The definitions set forth in sec.133.22 of this title (relating 
to Suspension of Students; Removal to Alternative Education Programs) are 
applicable to this section.
(b)  Expulsion procedure.
(1) The student may only be expelled by written order setting the term of the 
expulsion.
(2) Before the expulsion, the board or its designee must provide the student a 
hearing at which the student is afforded requisite due process which shall 
include the following:
(A) prior notice of the charges and the proposed sanctions as to afford a 
reasonable opportunity for preparation;
(B) right to a full and fair hearing before the board or its designee;
(C) right to an adult representative or legal counsel;
(D)  opportunity to testify and to present evidence and witnesses in his or her 
defense; and
(E) opportunity to examine the evidence presented by the school administration 
and to question the administration's witnesses.
(3) Pending the expulsion hearing, a student may be placed in home-based 
instruction or in an alternative education program provided that the hearing 
shall be held within seven school days from the date of the offense. The date of 
the hearing-may be deferred beyond the seven days only by the mutual consent of 
the student's parent or guardian and the district's representative.
sec.133.24. Discipline of Students with Handicaps.  Disciplinary actions 
regarding students with handicaps shall be in accordance with sec.133.22 of this 
title (relating to Suspension of Students: Removal of Alternative Education 
Programs) and sec.133.23 of this title (relating to Expulsion) except as noted 
in this section.
(1) Students with handicaps. For the purpose of this section, a student with a 
handicap is a student who has been evaluated in accordance with 34 Code of 
Federal Regulations, sec.sec.300.530-300.534 and sec.89. 233 of this title 
(relating to Comprehensive Individual Assessment) and determined by an 
admission, review, and dismissal (ARD) committee as meeting the eligibility 
criteria for orthopedically handicapped, other health impaired, auditorially 
handicapped, visually handicapped, deaf-blind, mentally retarded, emotionally 
disturbed, learning disabled, speech handicapped, autistic, multiply 
handicapped, or traumatic brain injured, who because of those impairments needs 
special education and related services.
(2) Suspension or removal to an alternative education program.
(A) Students with handicaps may be suspended in the same manner as students 
without handicaps for a period not to exceed six school days or removed to an 
alternative education program for a period not to exceed 10 consecutive school 
days.
(B) Students with handicaps may not be suspended for more than six days or 
removed to an alternative education program for more than 10 days unless the ARD 
committee first determines whether the alleged behavior in question was related 
to the handicapping condition. If the ARD committee determines there is a 
connection, they must also determine what action is appropriate.
(C) The term of a student's removal to an alternative education program shall be 
assessed in accordance with the requirements of the Texas Education Code, 
sec.21.301(d) and 34 Code of Federal Regulations sec.300.513 (relating to 
child's status during proceedings). However, removal for more than 10 
consecutive school days may be effected only through ARD committee action, 
subject to the parents' right to appeal.
(3) Emergency removal.
(A) Emergency removal of a student with a handicap from a class or school for 
health, safety, or welfare reasons may only be done for compelling reasons as 
noted in sec.133.22(c) of this title and shall not exceed five consecutive 
school days except as set out in subparagraphs (B) and (C) of this paragraph. 
Any student who is removed from school premises pursuant to this subsection and 
who is in a condition that threatens his own welfare or the welfare of others 
must be released to the student's parent, a representative of the parent, or 
other proper authority, including, but not limited to, law enforcement officers 
and medical personnel.
(B) Removal under this section is intended to be used in emergency situations 
only and consecutive five school day removals are prohibited unless the ARD 
committee determines that the student poses an immediate threat to the safety of 
himself or herself or others, or disrupts the safety of the learning 
environment.
(C) If the ARD committee determines that a student is dangerous pursuant to 
subparagraph (B) of this paragraph, but the parents appeal the decision pursuant 
to the Individuals with Disabilities Education Act procedures and refuse to 
permit a change of placement, the school must obtain immediate injunctive relief 
from a state or federal court in order to remove the student for more than 10 
consecutive days.
(D) The district shall make reasonable efforts to notify the parent prior to 
removing a student from school premises under this subsection. If the parent 
cannot be notified prior to removal, the parent must be notified as soon as 
possible after the removal and the reasons for it.
(4) Removals totaling 16 school days. When the total number of days a student 
with a handicap is removed to an alternative education program, suspended, or 
removed for emergency reasons totals 16 school days in any one school year, an 
ARD committee review of the student's IEP shall be conducted unless such removal 
is warranted in the student's discipline management plan specified in the 
student's IEP.
(5) Sanctions specified in students' IEP. The requirements of sec.133.22 of this 
title and paragraphs (2) and (3) of this subsection shall not apply to 
disciplinary sanctions implemented in accordance with specifications in the 
student's IEP. If the student's IEP contains disciplinary sanctions and is not 
being challenged in an administrative or court appeal pursuant to the 
Individuals with Disabilities Education Act, then those sanctions in the IEP 
should be followed rather than the requirements of sec.133.22 of this title and 
paragraphs (2) and (3) of this subsection.
(6) Expulsion of students with handicaps.
(A) Expulsion may be effected for a student with a handicap who is engaging in 
conduct which would warrant such action for a student without handicaps under 
sec.133.23 of this title only if the ARD committee determines the misconduct is 
not related to the handicapping condition or inappropriate placement.
(B) The exclusion of a student with a handicap from his or her current 
placement, pending appeal of an expulsion, may not exceed 10 days without ARD 
committee action (subject to the parents' rights to appeal under the Individuals 
with Disabilities Education Act and the status quo provisions of 34 Code of 
Federal Regulations, sec.300.513) to determine appropriate services in the 
interim.
(C) In determining whether a student's disruptive behavior was related to a 
student's handicapping condition, the ARD committee shall base its decision on 
currently effective evaluation and assessment data and on review of the current 
IEP documentation rather than on established eligibility or previous committee 
decisions. The committee shall consider whether the student's behavior indicates 
the need for new assessment or evaluation data. Unless the parents agree 
otherwise, the student must be returned to his or her current placement after 10 
days while additional assessments are being conducted.
(D) The ARD committee shall determine the instructional and related services to 
be provided during the time of expulsion. The student's IEP shall include goals 
and objectives designed to assist in returning the student to school and 
preventing significant regression.
(E) If the ARD committee determines that the student's disruptive behavior is 
related to the handicapping condition or inappropriate placement, the student 
shall not be expelled. If the disruptive behavior on the part of the student 
indicates an inappropriate placement, the ARD committee shall review the 
placement and recommend alternatives.
(F) If the ARD committee determines that the behavior was related to the 
handicapping condition, then the ARD committee shall:
(i) rewrite the IEP to address the behavioral and educational needs of the 
student; or
(ii) when appropriate, consider the extension of an emergency removal pursuant 
to paragraph (3)(B) of this subsection.
(7)  Parent participation in ARD committee meetings. The provisions of sec.89. 
222(d) of this title (relating to Parent Participation in ARD Committee 
Meetings) and 34 Code of Federal Regulations, sec.300.513 (relating to child's 
status during proceedings) are applicable in circumstances arising under this 
section.
(8) Referral for assessment. Local officials should be aware that persistent 
discipline problems or disruptive conduct exhibited by a student who has not 
previously been a discipline problem might warrant referral for assessment. 
However, a regular education student is not entitled to avoid disciplinary 
action pending any assessment.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200980
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
Chapter 175. Proprietary Schools and Veterans Education
The Texas Education Agency (TEA) proposes the repeal of  ssec.175.1, 175.2, and 
175.101, concerning proprietary schools and veterans education. The repeal of 
the sections is necessary to implement changes resulting from the passage of 
recent legislation included in Senate Bill 757 and House Bill 2885 as passed by 
the 72nd Legislature. The chapter currently contains provisions related to 
commercial driving schools, proprietary schools, and veterans education. The 
chapter is being repealed and reproposed as two separate chapters, one 
specifically addressing proprietary schools and veterans education and another 
pertaining to driver training schools.
Dee Bednar, senior director, proprietary schools, veterans education, and driver 
training, has determined that for the first five-year period the repeals are in 
effect there will be no fiscal implications for state or local government as a 
result of enforcing or administering the repeals.
Ms. Bednar and Criss Cloudt, director for policy planning and evaluation, have 
determined that for each year of the first five years the repeals are in effect 
the public benefit anticipated as a result of enforcing the repeals will be a 
clearer more concise statement of rules relating to proprietary and drivers 
education schools and veterans education. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the repeals as proposed.
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed repeals submitted in accordance 
with the Administrative Procedure and Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the sections has been published in the  Texas Register.
Subchapter A. Proprietary School Advisory Commission
19 TAC sec.175.1-175.2
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.)
The repeals are proposed under Senate Bill 757, and House Bill 2885 as passed by 
the 72nd Legislature, which provides the State Board of Education with the 
authority to adopt policies, regulations, and rules necessary for carrying out 
the provisions of the Texas Proprietary School Act.
sec.175.1. Proprietary School Advisory Commission.
sec.175.2. Guidelines for Proprietary Schools.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200970
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
Subchapter D. Veterans Approval for Proprietary Schools
19 TAC sec.175.101
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.)
The repeal is proposed under Senate Bill 757, and House Bill 2885 as passed by 
the 72nd Legislature, which provides the State Board of Education with the 
authority to adopt policies, regulations, and rules necessary for carrying out 
the provisions of the Texas Proprietary School Act.
sec.175.101. Accredited and Nonaccredited Programs.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200972
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
The Texas Education Agency (TEA) proposes new sec.sec.175.1, 175.3, and 175.101, 
concerning proprietary schools and veterans education. The new sections 
implement changes resulting from the passage of recent legislation included in 
Senate Bill 757 and House Bill 2885 as passed by the 72nd Legislature.
Dee Bednar, senior director, proprietary schools, veterans education, and driver 
training, has determined that for the first five-year period the sections are in 
effect there will be fiscal implications as a result of enforcing or 
administering the sections. The effect on sate government can not be determined 
due to the inability to estimate the decreased in number of proprietary schools, 
as well as the impact this decrease will have on the total revenue generated 
from annual renewal fees. There will be no fiscal implications for local 
government.
Ms. Bednar and Criss Cloudt, director policy planning and evaluation, also have 
determined that for each year of the first five years the sections are in effect 
the public benefit anticipated as a result of enforcing the sections will be the 
implementation of statutory provisions designed to regulate the proprietary 
schools and ensure consumer protection. The 72nd Legislature changed the amount 
of the fee from a sliding scale with set increments to one based on . 3% of 
gross income. Therefore, the fiscal implications for small businesses will vary 
depending on the gross income from student tuition and fees for each business. 
There is no anticipated economic cost to persons who are required to comply with 
the sections as proposed.
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed sections submitted in accordance 
with the Administrative Procedure and Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the sections has been published in the  Texas Register.
Subchapter A. Proprietary School Advisory Commission
19 TAC sec.175.1, sec.175.3
The new sections are proposed under Senate Bill 757, and House Bill 2885 as 
passed by the 72nd Legislature, which provides the State Board of Education with 
the authority to adopt policies, regulations, and rules necessary for carrying 
out the provisions of the Texas Proprietary School Act.
sec.175.1. Proprietary School Advisory Commission.
(a) The Proprietary School Advisory Commission shall function in accordance with 
applicable statutes (reference the Texas Education Code, Chapter 32).
(b) As it functions in an advisory capacity, the Proprietary School Advisory 
Commission is assisted by the staff of the Division of Proprietary Schools and 
Veterans Education, the administrator, and the commissioner of education.
(c) If a member fails to attend two of the three statutory meetings in a 
calendar year, possible removal of that member must be considered at the next 
statutory meeting. That member may be recommended to the commissioner for 
removal by a two-thirds vote of the commission members present and voting.
(d) Any change which results in failure to maintain eligibility requirements of 
a person for a particular position on the commission shall cause a vacancy in 
that position.
(e) The administrator or administrator's designee, with the advice of the 
chairman of the proprietary school advisory commission, shall prepare and submit 
to each member of the commission, prior to each meeting, a copy of the proposed 
agenda for the commission meeting.
(1) Members of the commission may request that items be placed on the agenda in 
either of the following ways.
(A) A request that an item be placed on the agenda for a subsequent meeting may 
be made at a meeting of the commission. The discussion of the request must be in 
accordance with Texas Civil Statutes, Article 6252-17, sec.3(A) (a), Notice of 
Meetings.
(B) A request may be submitted in writing to the administrator or to the 
administrator's designee. The request should include all documents and other 
supporting materials as appropriate related to the item which the requestor 
wishes to have considered by the commission.
(2) Requests for the public for items to be placed on the agenda shall be 
submitted in writing to the administrator or to the administrator's designee. 
The request should include all documents and other supporting materials as 
appropriate related to the item which the requestor wishes to have considered by 
the commission.
sec.175.3. Memorandum of Understanding for Regulation of Proprietary Schools. 
Senate Bill 417 of the 71st Legislature requires the Central Education Agency to 
execute a memorandum of understanding with the Texas Guaranteed Student Loan 
Corporation and each state agency regulating proprietary schools. The purpose of 
the memorandum is to reduce default rates at the regulated proprietary schools 
and to improve the overall quality of the programs operated by the schools. That 
memorandum of understanding is adopted by reference as an official rule. A copy 
is available for examination during regular office hours, 8 a.m. to 5 p.m. 
except on holidays, Saturdays, and Sundays, at the Central Education Agency, 
1701 North Congress Avenue, Austin, Texas 78701.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200974
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
Subchapter D. Veterans Approval for Proprietary Schools
19 TAC sec.175.101
The new section is proposed under Senate Bill 757, and House Bill 2885 as passed 
by the 72nd Legislature, which provides the State Board of Education with the 
authority to adopt policies, regulations, and rules necessary for carrying out 
the provisions of the Texas Proprietary School Act.
sec.175.101. Accredited and Nonaccredited Programs. Proprietary schools desiring 
approval of a program or programs to train veterans and other eligible persons 
under the provisions of 38 United States Code Chapter 34 and 38 United States 
Code Chapter 35 may make application for such approval as follows.
(1) Approval of nonaccredited programs. Nonaccredited programs may be approved 
under the provisions of 38 United States Code, sec.1776.
(2) Approval of accredited programs. Programs which are accredited by a 
nationally recognized accrediting agency or association as defined in 38 United 
States Code, sec.1775(a) may be approved under the provisions of 38 United 
States Code, sec.1775, provided that the criteria set forth in 38 United States 
Code, sec.1776 are also met.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200975
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
Chapter 176. Driver Training Schools
The Texas Education Agency (TEA) proposes new sec. 176.1 and sec.176.10-176. 34, 
concerning driver training schools. The new sections implement changes resulting 
from the passage of recent legislation included in Senate Bill 757 and House 
Bill 2885 as passed by the 72nd Legislature, 1991.
Dee Bednar, senior director, proprietary schools, veterans education, and driver 
training, has determined that for the first five-year period the sections are in 
effect there will be fiscal implications as a result of enforcing or 
administering the sections. The effect on state government for the first five-
year period the sections are in effect will be an estimated loss in revenue of 
$75,238 for each year from 1992-1996. The loss is the result of the elimination 
of renewal fees for schools offering driving safety programs. Since schools will 
no longer be required to permit individuals who solicit or enroll students, the 
initial and renewal representative application fees were eliminated. It is 
projected that even with this reduction there will be sufficient revenue 
generated to maintain the current level of operation. There will be no fiscal 
implications for local government. It is anticipated that compliance with the 
sections by small businesses will result in a cost savings since schools will no 
longer be required to maintain copies of driving safety exams, only retain exam 
scores. There will be no adverse effect on small businesses due to this change 
and no increase in the cost per employee; hour of labor; or $100 of sales. A 
sample of driving safety and driver education schools contacted by the agency 
revealed estimated savings to small businesses ranged from $50 to $2,500 per 
year. There is no differentiation in the cost of compliance for small businesses 
versus large businesses.
Ms. Bednar and Criss Cloudt, director, policy planning and evaluation have 
determined that for each year of the first five years the sections are in effect 
the public benefit anticipated as a result of enforcing the sections will be the 
improvement of driver knowledge and skills through the licensing and regulation 
of driver training schools and driver training instructors in Texas. The 
anticipated economic cost to persons who are required to comply with the 
proposed sections will increase from $25 to $37.50 each for approximately 3,200 
instructors. Since tests are no longer required to obtain a driver training 
instructor license, travel to the education service centers or Austin is no 
longer necessary. The impact of this savings to persons has not been included in 
this projection.
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed sections submitted in accordance 
with the Administrative Procedure and Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the sections has been published in the  Texas Register.
Subchapter A. Driver Training School Advisory Commission
19 TAC sec.176.1
The new sections are proposed under Senate Bill 757 and House Bill 2885 as 
passed by the 72nd legislature, 1991, which provides the State Board of 
Education with the authority to adopt rules necessary to carry out the Texas 
Driver and Traffic Safety Education Act.
sec.176.1. Driver Training School Advisory Commission.
(a) As it functions in an advisory capacity, the Driver Training School Advisory 
Commission is assisted by the staff of the Division of Proprietary Schools, 
Veterans Education and Driver Training, the division director, and the 
commissioner of education.
(b) If a member fails to attend two of the three statutory meetings in a 
calendar year, possible removal of that member must be considered at the next 
statutory meeting. That member may be recommended to the commissioner for 
removal by a two-thirds vote of the commission members present and voting.
(c) Any change which results in failure to maintain eligibility requirements of 
a person for a particular position on the commission shall cause a vacancy in 
that position.
(d) A majority of the members shall elect a chairperson and vice-chairperson to 
serve a two-year term of office. The vice-chair serves in the absence of the 
chair.
(e) Prior to each meeting, the commissioner, or the commissioner's designee, 
with the advice of the chairman of the Driver Training School Advisory 
Commission, shall prepare and submit to each member of the commission of a copy 
of the proposed agenda for the commission meeting.
(1) Members of the commission may request that items be placed on the agenda in 
either of the following ways.
(A) A request that an item be placed on the agenda for a subsequent meeting may 
be made at a meeting of the commission. The discussion of the request must be in 
accordance with Texas Civil Statutes, Article 6252-17, sec.3(A) (a), Notice of 
Meetings.
(B) A request may be submitted in writing to the commissioner or to the 
commissioner's designee. The request should include all documents and other 
supporting materials as appropriate related to the item which the requestor 
wishes to have considered by the commission.
(2) Requests from the public for items to be placed on the agenda shall be 
submitted in writing to the commissioner or to the commissioner's designee. The 
request should include all documents and other supporting materials as 
appropriate related to the item which the requestor wishes to have considered by 
the commission.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200991
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
Subchapter B. Minimum Standards for Operation of Texas Driver Training Schools
19 TAC sec.sec.176.10-176.34
The new sections are proposed under Senate Bill 757 and House Bill 2885 as 
passed by the 72nd Legislature, 1991, which provides the State Board of 
Education with the authority to adopt rules necessary to carry out the Texas 
Driver and Traffic Safety Education Act.
sec.176.10. General Information.
(a) Minimum standards of operation must be maintained by all schools to ensure 
educational courses are of high quality which will be of benefit to the student, 
the school, and the state and to fulfill the purposes and objectives of the 
Texas Driver and Traffic Safety Education Act. The observance and maintenance of 
these standards are the responsibility of each school for inherent advantage to 
the school itself and for the common good of all of the driving public.
(b) The Texas Education Agency will evaluate each school according to the 
standards of practice set forth in this section, appropriate laws, and State 
Board of Education rules. The complete picture presented by the entire 
educational, promotional, and ethical character of the school will receive 
consideration in the agency's evaluation.
(c) Every effort will be made to evaluate fairly and impartially each driver 
training school application for licensure to solicit students in Texas for the 
purpose of providing driver education and driving safety courses of instruction. 
The Texas Education Agency will endeavor to provide an effective and 
constructive application of the law and standards of practice adopted for 
regulating driver training schools.
(d) The Texas Education Agency will assist all schools and the school directors 
under its jurisdiction, whenever possible, in complying with the provisions of 
the law and standards of practice. Inquiries or requests for information should 
be directed to the Texas Education Agency, Austin.
sec.176.11. Definitions.  The following words and terms, when used in this 
subchapter, shall have the following meanings, unless the context clearly 
indicates otherwise.
 Advertising-Any affirmative act, whether written or oral, designed to call 
public attention to a school and/or course in order to arouse a desire to 
patronize that school and/or course.
 Agency-The Central Education Agency also known as the Texas Education Agency.
 Change of ownership of a school-A change in the control of the school. Any 
agreement to transfer the control of a school is considered to be a change of 
ownership. The control of a school is considered to have changed:
(A) in the case of ownership by an individual, when more than 50% of the school 
has been sold or transferred;
(B) in the case of ownership by a partnership or a corporation, when more than 
50% of the school or of the owning partnership or corporation has been sold or 
transferred; or
(C)  when the board of directors, officers, shareholders, or similar governing 
body has been changed to such an extent as to significantly alter the management 
and control of the school.
 Commissioner-The commissioner of education or a person knowledgeable in the 
administration of regulating driver training schools and designated by the 
commissioner to administer this Act.
 Course owner or primary consignee facilities -The address provided to the 
agency as the location to which the course owner or primary consignee stores 
records and uniform certificates of completion. These facilities may be a 
licensed school.
 Course provider -A person, also known as course owner or consignee, who has 
created, produced, or copyrighted a course curriculum designed to improve 
licensed driver competency and driver performance levels.
 Director-The person designated by the commissioner to carry out the functions 
and regulations governing the driver training schools and hereinafter referred 
to as director of the Division of Proprietary Schools, Veterans Education, and 
Driver Training.
 Division-The Division of Proprietary Schools, Veterans Education, and Driver 
Training of the Texas Education Agency responsible for executing the provisions 
of the law, rules, regulations, and standards as contained in this chapter.
 Good reputation -A person is considered to be of good reputation if:
(A) there are no felony convictions related to the operation of a school, and 
the person has been rehabilitated from any other felony convictions;
(B) there are no convictions involving crimes of moral turpitude;
(C) within the last 10 years, the person has never been successfully sued for 
fraud or deceptive trade practice;
(D) the person does not own a school currently in violation of the legal 
requirements; has never owned a school with habitual violations; or has never 
owned a school which closed with violations including, but not limited to, 
unpaid refunds; or
(E) the person has not falsified or withheld material information from 
representatives of the agency; and
(F) instructors shall have no misdemeanor or felony convictions involving 
driving while intoxicated over the past 10 years.
 Instructor trainer -A driver training instructor who has been trained to 
prepare instructors to give instruction in a specified curriculum.
 New course-A course is considered to be new when it has not been offered 
previously or has been offered and then discontinued and/or the content or 
lessons of the course have been changed 25% or more.
 Owner-Includes:
(A) in the case of a school owned by an individual, that individual;
(B) in the case of a school owned by a partnership, all full, silent, and 
limited partners;
(C) in the case of a school owned by a corporation, the corporation, its 
directors, officers, and each shareholder owning shares of issued and 
outstanding stock aggregating at least 10% of the total of the issued and 
outstanding shares.
 Teen and teenage -Eligible students of driver education who are at least 14 
years of age when the classroom phase begins and who will be at least 15 years 
of age at the time the classroom phase ends.
 Uniform certificate of course completion-This term encompasses all parts of a 
certificate with the same serial number.
 Week-Seven calendar days.
sec.176.12. Exemptions.
(a) Schools desiring to be considered exempt from regulation as authorized by 
Texas Civil Statutes, sec.7, Article 4413(29c), shall request an exemption in 
writing and provide any information deemed necessary to the director to 
determine exempt status.
(b) Any school granted exempt status may be required to provide information or 
be visited by representatives of the agency in order to ensure continued 
operation in compliance with the exemption provisions.
(c) Schools desiring an exemption from this Act on the basis of being otherwise 
regulated and approved under any other state law must show that all of the 
driver training courses are so regulated.
(d) Contracts with schools otherwise regulated and approved. The driver 
education course shall be eligible for the exception under Texas Civil Statutes, 
Article 4413(29c), sec.7(c)(5), when the driver training school contracts with 
schools to provide instruction in compliance with the following.
(1) Classroom instruction shall be at the school and all behind-the-wheel 
instruction shall originate from the school or at the driving school.
(2) Driver training schools shall contract with the school and not with the 
individual student.
(3) The school shall collect fees for the course from the students and pay the 
driver training school in accordance with terms of the contract. Driver training 
schools shall not collect any monies from the students.
(4) The driver education affidavit which verifies that an approved driver 
education course has been satisfactorily completed shall be signed by the driver 
training school instructor on the line designated as "Signature of Driver 
Education Instructor." The chief school official or service center director of 
the school that has contracted the instruction to the driver training school 
shall sign or cause a stamped signature to be affixed to the driver education 
affidavit.
sec.176.13. School Licensure.
(a) Application. An application for a driver training school license shall be 
made on forms supplied by the agency.
(b) Bond requirements. In the case of an original or a change of owner 
application, an original bond shall be provided. In the case of a renewal 
application, an original bond or a continuation agreement for the approved bond 
currently on file shall be submitted. The bond or the continuation agreement 
shall be executed on the form provided by the agency.
(c)  Verification of ownership.
(1) In the case of an original or change of owner application, the owner of the 
school shall provide verification of ownership which includes, but is not 
limited to, copies of stock certificates, partnership agreements, and assumed 
name registrations. The director may require additional evidence as is deemed 
necessary to verify ownership.
(2)  With the renewal application, the owner of the school shall provide 
verification that no change in ownership has occurred. The director may require 
additional evidence as is deemed necessary to verify that no change of ownership 
has occurred.
(d) Effective date of the driver training school license. The effective date of 
the driver training school license shall be the date the license is issued. 
Exceptions may be made if the applicant was in full compliance on the effective 
date of issue.
(e) Purchase of school. A person or persons purchasing a licensed driver 
training school shall comply with all the requirements for securing an original 
license. In addition, copies of the executed sales contract(s), bill(s) of sale, 
deed(s), and all other instruments necessary to transfer ownership of the school 
shall be submitted to the agency. The contract or any instrument transferring 
the ownership of the school shall include the following.
(1) The purchaser shall assume all refund liabilities incurred by the seller or 
any former owner prior to the transfer of ownership.
(2) The sale of the school shall be subject to approval by the agency.
(3) The purchaser shall assume the liabilities, duties, and obligations under 
the enrollment contracts between the students and the seller, or any former 
owner.
(f) New location.
(1) The director shall be notified of any change of address within three working 
days prior to the move.
(2) A complete application for a driver training school license to reflect a new 
location shall be submitted to the agency and include all documents designated 
by the commissioner as being necessary with the appropriate fee. The license may 
be issued after the new facilities have been inspected and the complete 
application is approved.
(g) Renewal of driver training school license. A complete application for the 
renewal of a license shall be submitted prior to the expiration of the license 
and shall include the following:
(1) completed application for renewal;
(2)  annual renewal fee, if applicable;
(3) properly executed bond or a properly executed continuation agreement for the 
bond currently approved by and on file with the agency; and
(4) any other revisions or evidence of which the school has been notified in 
writing that is necessary to bring the school's application for a renewal 
license to a current and accurate status.
(h) Notification of legal action. All schools shall notify the director in 
writing of any legal action which may concern the operation of or filed against 
the school, its officers, any owner, or any school instructor within five 
working days after the school, its officers, any owner, or any school instructor 
has commenced the legal action or has been served with legal process. Included 
with the written notification, the school shall submit a file-marked copy of the 
petition or complaint that has been filed with the court.
sec.176.14. Driving Safety Course-Extension Locations.
(a) All extensions shall be registered and approved prior to offering a driving 
safety course.
(b) Schools desiring to conduct extensions shall:
(1)  make application for registration of each extension on the registration 
form supplied by the commissioner and shall include all applicable fees;
(2)  submit dates of course offerings, locations, class schedules, and scheduled 
instructor's name and license number at least 30 days before teaching a course. 
Exceptions to this requirement may be granted by the commissioner on an 
individual basis;
(3) notify the agency within 30 days prior to the discontinuance of an 
extension. Notification shall include a statement of assurance to the effect 
that verification and retrieval of all uniform certificates of completion 
provided to the extension have been accomplished;
(4) provide an instructional staff roster for each extension, which shall be 
updated quarterly, on a form provided by the agency. Changes to the 
instructional staff roster shall not require payment of an additional extension 
registration fee; and
(5) be responsible for maintaining records pertaining to the extensions, which 
include, but are not limited to:
(A)  information pertaining to completed examinations for driving safety courses 
offered at the extensions;
(B) contracts for courses provided at the extensions; and
(C) any documentation which is not forwarded to the course owner or primary 
consignee.
(c) The school shall receive notification of the approved registered extensions 
from the director. A copy of the notification shall be made by the school and 
forwarded to each extension. The extension shall maintain the copy of the notice 
for examination by the agency.
(d) The extension shall have permanent physical and mailing addresses that are 
provided to the agency. Any changes to the permanent address shall require 
submission of a registration application and fee. Changes to the mailing address 
shall not require payment of the fee.
(e) An extension may provide instruction at multiple classroom addresses. All 
such addresses shall be provided to the agency on a form supplied by the 
commissioner. Changes in classroom addresses shall not require submission of a 
new registration application or fee.
(f) Every extension shall have an agency-approved administrative staff member 
who shall serve as the person responsible for submitting documentation to the 
school from the extension.
(g) All contacts by the agency with extensions, except on-site investigations, 
shall be made through the licensed school. A violation of the law or rules by an 
extension constitutes a violation by the school.
(h) An extension which chooses to offer more than one school's approved driving 
safety course shall be registered and approved for each school. Procedures shall 
be developed by the course owners or primary consignees for the courses being 
offered and submitted to the agency for approval to ensure that a system for 
issuing uniform certificates of completion for an extension that offers multiple 
courses is established.
(i) All extension registrations are contingent on the school license and shall 
be subject to denial or revocation if such action is taken against the license 
of the school which has responsibility for the extension.
sec.176.15. Applications from Small Businesses.
(a) Time periods. Applications from small businesses for driver training school 
licenses and school directors shall be processed in accordance with the 
following time periods.
(1) The first period is a time from the receipt of an application to the date of 
issuance of a written notice approving the application or outlining the reasons 
why the application is unacceptable. The time periods for each application are:
(A) initial driver training school license-30 days;
(B) renewed driver training school license-60 days;
(C) change in owner driver training school license-60 days; and
(D) school directors-20 days.
(2) The second period is a time from receipt of the last item necessary to 
complete the application to the date of issuance of written notice approving or 
denying approval of the application. The time periods for each application are:
(A) initial driver training school license-30 days;
(B) renewed driver training school license-30 days;
(C) change in owner driver training school license-30 days;
(D) school directors (approval contingent on issuance of school's license)-30 
days; and
(E) school directors (approval not contingent on issuance of school's license)-
20 days.
(b) Reimbursement of fees.
(1) In the event the application is not processed in the time periods as stated 
in subsection (a) of this section, the applicant has the right to request of the 
director full reimbursement of all filing fees paid in that particular 
application process. If the director does not agree that the established periods 
have been violated or finds that good cause existed for exceeding the 
established periods, the request will be denied.
(2) Good cause for exceeding the period established is considered to exist if:
(A) the number of applications for driver training school licenses and school 
directors as appropriate to be processed exceeds by 15% or more the number 
processed in the same calendar quarter the preceding year;
(B) another public or private entity utilized in the application process caused 
the delay; or
(C)  other conditions existed giving good cause for exceeding the established 
periods.
(c) Appeal. If the request for full reimbursement authorized by subsection (b) 
of this section is denied, the applicant may then request a hearing by appealing 
to the commissioner of education for a resolution of the dispute. The appeal 
will be processed in the same manner as other appeals involving driver training 
schools pursuant to Texas Civil Statutes, Article 4413(29c) and Chapter 157 of 
this title (relating to Hearings and Appeals).
sec.176.16. Driver Training School Responsibility for Employees.
(a) All instruction in a driving safety course shall be performed by agency-
licensed instructors except a student instructor may teach the 16 hours 
necessary for licensing under the direction and in the presence of a licensed 
driver training instructor trainer who has been trained in the curriculum being 
instructed. If a licensed instructor enters or leaves the employment of any 
driver training school or extension, the school director shall within five days 
notify the director on forms furnished by the commissioner indicating the name, 
address, and license number of the school and the instructor, the date of 
employment or the termination date, and the reason for termination.
(b)  No driver training school owner-operator or manager shall:
(1)  permit any individual to give classroom instruction or behind-the-wheel 
instruction at the school or any extension location unless the individual has a 
valid current driver training instructor's license issued by the agency, except 
as provided in subsection (a) of this section;
(2) allow an instructor to give instruction or allow a student to secure 
instruction in the classroom or in a motor vehicle if that instructor or student 
is using or exhibits any evidence or effect of an alcoholic beverage, controlled 
substance, or drug as those terms are defined in Texas Civil Statutes, Article 
6701l-1;
(3)  wear or permit to be worn any uniform resembling the uniform worn by 
Department of Public Safety or other law enforcement employees, unless the 
person is performing a direct duty of the agency authorizing the individual to 
wear the uniform; or
(4) complete, issue, or validate a certificate of course completion to a person 
who has not successfully completed the course.
(c) For the purposes of Texas Civil Statutes, Article 4413(29c) and this 
chapter, each driver training instructor employed by or associated with any 
driver training school shall be deemed an agent of the driver training school, 
and the school shall share the responsibility for all acts performed by the 
instructor which are within the scope of the employment and which occur during 
the course of the employment.
sec.176.17. School Directors and Administrative Staff Members.
(a)  Each school shall designate one person as the school director.
(1)  Duties. The school director shall be responsible for all actions related to 
day-to-day operation and administration of the school, which includes 
supervising instructors, organizing and scheduling classes, maintaining the 
school plant, maintaining proper administrative records, and signing documents 
which require the signature of the chief school official.
(2)  Qualifications. The person designated as the school director shall have 
either:
(A) a baccalaureate degree from an accredited institution of higher learning 
(four-year college or university); successful completion of six semester hours 
of driver education and/or driving safety courses; and one year of paid 
experience in administration, supervision, or management of a driver training 
school; or
(B) a combined total of five years of higher education and 
administrative/management experience; or
(C) a current license as a driver training instructor, and qualified to teach 
one or more of the school's courses for at least three of the five preceding 
years.
(b)  During any period when the school director is required to be absent from 
the school, the owner shall designate an acting school director. The acting 
school director is not required to pay an application fee nor submit an 
application for approval to the agency. An acting school director may be 
designated for a maximum of two months.
(1) Duties. The acting school director shall perform all the functions of, and 
assume the authority of, the school director in the absence of that person.
(2) Qualifications. The acting school director shall have a high school diploma, 
GED, or equivalent, or be a licensed driver training instructor.
(c) An administrative staff member shall be designated by the school director 
for each registered extension.
(1)  Duties. The administrative staff member shall perform all the 
administrative functions of the extension.
(2) Qualifications. The administrative staff member shall have a high school 
diploma, GED, or equivalent, or be a licensed driver training instructor.
(d) An individual shall be approved by the agency as the school director or 
administrative staff member before employment as such.
(e) The school director, acting school director, or administrative staff member 
for the extension shall serve as a liaison person during any announced 
compliance visit by the agency.
(f)  Violations at the school may result in revocation of the approval of the 
school director and/or the administrative staff member.
sec.176.18. Driver Training Instructor License.
(a) Application for licensing as driver training instructor shall be made on 
forms supplied by the agency. A person is qualified to apply for a driver 
training instructor license who:
(1) is of good reputation; and
(2) holds a valid driver's license for the preceding five years in the areas for 
which the individual is to teach.
(b) A person applying for an original driver training instructor's license shall 
submit to the agency the following:
(1)  complete application as provided by the commissioner;
(2)  processing and annual instructor licensing fees;
(3) documentation showing that all applicable educational requirements have been 
met. Original documentation shall be provided upon the request of the director; 
and
(4)  any other information necessary to show compliance with applicable state 
and federal requirements.
(c) A person applying for a driver training instructor license may qualify for 
the following endorsements.
(1)  Driver education teacher.
(A) The application shall include a current, valid Texas teacher's certificate 
with a driver education endorsement and proof of successful completion of all 
state examinations issued by the agency to the applicant, or that the applicant 
has complied with all the necessary documentation as determined by the 
appropriate division of the agency.
(B) Responsibilities of a driver education teacher include:
(i)  instruction and administration of multiphase driver education to teens and 
adults; and
(ii) instruction of the agency-approved teaching assistant study program at an 
education service center.
(2) Teaching assistant/teaching assistant-full.
(A) The application shall include a valid teaching assistant certificate issued 
by the appropriate division of the agency.
(B) All teaching assistants are allowed to assist certified teachers in the 
classroom provided the certified teacher is present. The duties are limited to 
the following areas:
(i) grading or handing out written assignments;
(ii) operating audio-visual equipment; and
(iii) providing behind-the-wheel instruction for teens and adults. A teaching 
assistant-full, if properly certified to do so, may also teach simulator and 
multi-car driving range training.
(3) Adult driver education instructor.
(A) The application shall include evidence of one of the following:
(i) Texas teacher certificate with driver education endorsement;
(ii) a teaching assistant certificate; or
(iii) completion of an agency-approved 40-clock-hour adult instructor 
development course conducted by a licensed adult driver education instructor 
trainer.
(B) Responsibilities of an adult driver education instructor include any 
classroom or behind-the-wheel instruction for adults.
(4) Adult driver education instructor trainer.
(A) The application shall include evidence of one of the following:
(i)  Texas teacher certificate with driver education endorsement;
(ii)  a teaching assistant certificate and 50 hours of verifiable behind-the-
wheel experience as a licensed adult driver education teacher; or
(iii) completion of an agency-approved 40-clock-hour adult instructor 
development course and 100 hours of verifiable behind-the-wheel experience as a 
licensed adult driver education teacher.
(B) The application shall also include a written statement signed by the school 
owner which recommends that the instructor be licensed as an adult driver 
education instructor trainer.
(C) The responsibilities of an adult driver education instructor trainer include 
administering and instructing an agency-approved 40-clock-hour adult instructor 
development course and any classroom or behind-the-wheel instruction for adults.
(5) Driving safety instructor.
(A) The application shall include evidence of completion of 24 hours of 
training, covering techniques of instruction and in-depth familiarization with 
material contained in the driving safety curriculum in which the individual is 
being trained and 16 hours of practical teaching in the same driving safety 
course.
(B) The responsibilities of a driving safety instructor include instructing an 
agency-approved driving safety course specific to the curriculum in which the 
individual is trained.
(6) Driving safety instructor trainer.
(A) The application shall include evidence of one of the following:
(i) a Texas teaching certificate with driver education endorsement and 80 hours 
of experience, exclusive of the 40-hour instructor development course, in the 
same driving safety course for which the individual is to teach;
(ii) a teaching assistant certificate and 80 hours of experience, exclusive of 
the 40-hour instructor development course, in the same driving safety course for 
which the individual is to teach;
(iii) completion of an agency-approved 40-clock-hour driving safety instructor 
development course in the same driving safety course for which the individual is 
to teach and 400 hours of verifiable experience as a licensed driving safety 
instructor, of which the most recent 80 hours shall be in the same driving 
safety course for which the individual is to teach; or
(iv) a statement signed by the driving safety course owner or primary consignee, 
if different than the applicant, recommending the instructor as an instructor 
trainer.
(B)  The responsibilities include instructing an agency-approved driving safety 
course and signing as a driving safety instructor trainer for the 16 hours of 
practice teaching required for driving safety instructor trainees.
(7)  Instructor development course driving safety instructor trainer.
(A)  The application shall include evidence of:
(i) completion of all the requirements for a driving safety instructor trainer 
or proof of authorship of an approved driving safety course; and
(ii) a statement signed by the driving safety course owner or primary consignee, 
if different than the applicant, recommending the instructor as an instructor 
development course instructor trainer.
(B) The responsibilities include instructing an agency-approved driving safety 
course, training individuals to teach an agency-approved driving safety course, 
and signing student instruction records for driving safety trainees.
(d) Renewal application for driver training instructor license.
(1) Application for renewal of an instructor license shall be made on a form 
provided by the commissioner and shall be accompanied by the annual instructor 
licensing fee.
(2)  License renewal applications shall be postmarked at least 30 days before 
the date of expiration or a late instructor renewal fee shall be imposed.
(e)  All driver training instructor license endorsement changes shall require 
the following:
(1) written documentation showing all applicable educational requirements have 
been met to justify endorsement changes; and
(2)  annual instructor licensing fee.
(f) All other license change requests, including duplicate instructor licenses 
or name changes, shall be made in writing and shall include payment of the 
duplicate driver training instructor license fee.
(g) The agency shall be notified of an instructor's change of address in 
writing. Address changes shall not require payment of a fee.
(h) All instructors shall notify the director in writing of any legal action 
filed against the instructor within five working days of commencement of the 
legal action. The director may require a file-marked copy of the petition or 
complaint that has been filed with the court.
(i) The commissioner may suspend, revoke, or deny a license to any driver 
training instructor trainer or driver training instructor, upon determining 
that:
(1) the applicant or licensee has been convicted under the laws of this state, 
another state, or the United States of any felony, or an offense involving moral 
turpitude, or an offense of involuntary manslaughter, or criminally negligent 
homicide committed as a result of the person's operation of a motor vehicle, or 
an offense involving driving while intoxicated or driving under the influence of 
drugs, or an offense involving tampering with a governmental record.
(A) These particular crimes relate to the licensing of instructors because such 
persons, as licensees of the agency, are required to be of good moral character, 
and to deal honestly with courts and members of the public. Driver training 
instruction involves supervision of inexperienced drivers on public highways, 
and accurate recordkeeping and reporting for purpose of driver licensing, court 
documentation, and other purposes. In determining the present fitness of a 
person who has been convicted of a crime and in determining whether a criminal 
conviction directly relates to an occupation, the agency shall consider those 
factors stated in Texas Civil Statutes, Articles 6252-13c and 13d.
(B) In the event that an instructor is convicted of such an offense, the 
instructor's license will be subject to revocation or denial. A conviction for 
an offense, other than a felony, shall not be considered by the agency, under 
this paragraph, if a period of more than 10 years has elapsed since the date of 
the conviction or of the release of the person from the confinement or 
suspension imposed for that conviction, whichever is the later date.
(C) For the purposes of this paragraph, a person is convicted of an offense when 
an adjudication of guilt on an offense is entered against the person by a court 
of competent jurisdiction, whether or not:
(i) the sentence is subsequently probated and the person is discharged from 
probation;
(ii) the accusation, complaint, information, or indictment against the person is 
dismissed and the person is released from all penalties and disabilities 
resulting from the offense; or
(iii) the person is pardoned for the offense, unless the pardon is expressly 
granted for subsequent proof of innocence.
(2) the applicant, licensee, any instructor, or agent is addicted to the use of 
alcoholic beverages or drugs, or becomes incompetent to safely operate a motor 
vehicle or conduct classroom or behind-the-wheel instruction properly;
(3) the license was improperly or erroneously issued;
(4) the applicant or licensee fails to comply with the rules and regulations of 
the agency, regarding the instruction of drivers in this state or fails to 
comply with any section of Texas Civil Statutes, Article 4413(29c);
(5) the instructor fails to follow procedures as prescribed in this chapter; or
(6) the applicant or licensee has a personal driving record showing that the 
person has been the subject of driver improvement or corrective action as cited 
in Department of Public Safety administrative rules, 37 TAC sec.15.81, referring 
to criteria for driver improvement action, during the past two years, or that 
such action is needed to protect the students and motoring public.
sec.176.19. Courses of Instruction.
(a) This subchapter contains requirements for driving safety, driver education, 
and instructor development courses. For each course, the following curriculum 
documents and materials are required to be submitted as part of the application 
for approval.
(1) Driving safety courses.
(A) Educational objectives. The educational objectives of driving safety courses 
shall include, but not be limited to, promoting respect for and encouraging 
observance of traffic laws and traffic safety responsibilities of drivers and 
citizens, reducing traffic violations, reducing traffic-related injuries, 
deaths, and economic losses, and motivating continuing development of traffic-
related competencies.
(B)  Minimum course content. A driving safety course shall include, as a 
minimum, materials adequate to address the following topics and to comply with 
the minimum time requirements for each topic and the course as a whole.
(i)  Course introduction-minimum of 10 minutes (instructional objective-to 
orient students to the class):
(I) purpose and benefits of the course;
(II) course and facilities orientation;
(III) requirements for receiving course credit; and
(IV) student course evaluation procedures.
(ii) The traffic safety problem-minimum of 15 minutes (instructional objectives-
to develop an understanding of the nature of the traffic safety problem and to 
instill in each student a sense of responsibility for its solution):
(I) identification of the overall traffic problem in the United States, Texas, 
and the locale where the course is being taught;
(II) death, injuries, and economic losses resulting from motor vehicle crashes 
in Texas; and
(III) five leading causes of motor vehicle crashes in Texas as identified by the 
Department of Public Safety.
(iii)  Factors influencing driver performance-minimum of 30 minutes 
(instructional objective-to identify the characteristics and behaviors of 
drivers and how they affect driving performance):
(I) attitudes, habits, feelings, and emotions;
(II) alcohol and other drugs;
(III)  physical condition;
(IV) knowledge of driving laws and procedures; and
(V) understanding the driving task.
(iv) Traffic laws and procedures-minimum of 30 minutes (instructional 
objectives-to identify the requirements of and the rationale for applicable 
driving laws and procedures and to influence drivers to comply with the laws on 
a voluntary basis):
(I)  passing;
(II) right-of-way;
(III) turns;
(IV)  stops;
(V) speed limits;
(VI) railroad crossings;
(VII) categories of traffic signs, signals, and highway markings;
(VIII) pedestrians;
(IX) improved shoulders;
(X)  intersections;
(XI) occupant restraints;
(XII) law enforcement and emergency vehicles (this category will be temporary 
until the need is substantiated by documentation from the Department of Public 
Safety on the number of deaths or injuries involved because of improper 
procedures used by a citizen when stopped by a law enforcement officer); and
(XIII) other laws as applicable (i.e., financial responsibility/compulsory 
insurance).
(v) Special skills for difficult driving environments-minimum of 30 minutes 
(instructional objectives-to identify how special conditions affect driver and 
vehicle performance and to identify techniques for management of these 
conditions):
(I) inclement weather;
(II) traffic congestion;
(III)  city, urban, rural, and expressway environments;
(IV) reduced visibility conditions--hills, fog, curves, light conditions 
(darkness, glare, etc.), etc.; and
(V) roadway conditions.
(vi) Physical forces that influence driver control-minimum of 15 minutes 
(instructional objective-to identify the physical forces that affect driver 
control and vehicle performance):
(I) speed control (acceleration, deceleration, etc.);
(II) traction (friction, hydroplaning, stopping distances, centrifugal force, 
etc.); and
(III) force of impact (momentum, kinetic energy, inertia, etc.)
(vii) Perceptual skills needed for driving-minimum of 30 minutes (instructional 
objective-to identify the factors of perception and how the factors affect 
driver performance):
(I) visual interpretations;
(II) hearing;
(III) touch;
(IV) smell;
(V)  reaction abilities (simple and complex); and
(VI) judging speed and distance.
(viii) Defensive driving strategies-minimum of 50 minutes (instructional 
objective-to identify the concepts of defensive driving and demonstrate how they 
can be employed by drivers to reduce the likelihood of crashes, deaths, 
injuries, and economic losses):
(I) trip planning;
(II) evaluating the traffic environment;
(III) anticipating the actions of others;
(IV) decision-making;
(V) implementing necessary maneuvers;
(VI) compensating for the mistakes of other drivers;
(VII) avoiding common driving errors; and
(VIII) interaction with other road users (motorcycles, bicycles, trucks, 
pedestrians, etc.)
(ix) Driving emergencies-minimum of 50 minutes (instructional objective-to 
identify common driving emergencies and their countermeasures):
(I) collision traps (front, rear, and sides);
(II) off-road recovery, paths of least resistance; and
(III)  mechanical malfunctions (tires, brakes, steering, power, lights, etc.).
(x) Occupant restraints and protective equipment-minimum of 20 minutes 
(instructional objective-to identify the rationale for having and using occupant 
restraints and protective equipment):
(I) legal aspects;
(II) vehicle control;
(III) crash protection;
(IV)  operational principles (active and passive); and
(V) helmets and other protective equipment.
(xi) Alcohol and traffic safety-minimum of 50 minutes (instructional objective-
to identify the effects of alcohol on roadway users):
(I)  physiological;
(II) psychological;
(III) legal aspects;
(IV) synergistic; and
(V) countermeasures.
(xii) Comprehensive examination and summation-minimum of 15 minutes (This shall 
be the last unit of instruction.) The remaining required 55 minutes of 
instruction shall be allocated to topics, excluding clause (i) of this 
subparagraph, and this clause or to additional driving safety topics included in 
the approved curriculum guide.
(C) Course management. Approved driving safety courses shall be presented in 
compliance with the following.
(i)  No more than 50 students per class in driving safety courses.
(ii)  The total length of the course shall consist of a minimum of 480 minutes.
(iii) A minimum of 400 minutes of instruction is required.
(iv) Eighty minutes of time exclusive of the 400 minutes of instruction shall be 
dedicated to break periods. All break periods shall be provided prior to the 
comprehensive exam and course summary.
(v)  Administrative procedures, such as enrollment, shall not be included in 
instructional time.
(vi) Courses conducted in a single day shall allow a minimum of 30 minutes for 
lunch.
(vii) Courses taught over a period longer than one day shall provide breaks on a 
schedule equitable to those prescribed for one-day courses. However, all breaks 
shall be provided prior to the last unit of the instructional day or the 
comprehensive exam, whichever is appropriate.
(D) Driving safety course guides. A course guide is a description of the content 
of the course and the techniques of instruction that will be used to present the 
course. The guide shall be bound into one unit or contained in a hole-punched 
notebook with a cover and a table of contents. To be approved for licensing each 
course owner or primary consignee shall submit as part of the application a 
course guide that includes the following:
(i) a statement of the course's traffic safety goal and philosophy;
(ii) a statement of policies and administrative provisions related to instructor 
conduct, standards, and performance;
(iii)  a statement of policies and administrative provisions related to student 
conduct and attendance;
(iv) a statement of policy addressing entrance requirements and special 
conditions of students such as the inability to read, language barriers, and 
other handicaps;
(v) a list of relevant instructional resources such as textbooks, audio and 
visual media and other instructional materials, and equipment that will be used 
in the course. A variety of relevant motion picture films, slides, videos, 
and/or tape recordings shall be used for at least 80 minutes but cannot be used 
in excess of 200 minutes of the 400 minutes of instruction. The list of 
resources may be included in a single list, or they may appear at the end of 
each instructional unit;
(vi) a clear identification of the order in which the units of instruction will 
be presented, and for each student the course shall be taught in the order 
identified in the approved application;
(vii) a description of the plan(s) under which the course will be presented;
(viii)  units of instruction sufficient to present the topics identified in 
subparagraph (B) of this paragraph and any additional topics unique to the 
course. Each instructional unit shall include the following:
(I) the subject of the unit;
(II) the instructional objective(s) of the unit;
(III) time to be dedicated to the unit;
(IV) an outline of major concepts to be presented;
(V) instructional activities to be used to present the material (lecture, films, 
other media, small-group discussions, workbook activities, written, and oral 
discussion questions, etc.). When small-group discussions are planned, the 
course guide shall identify the questions that will be assigned to the groups;
(VI) instructional resources for each unit; and
(VII) techniques for evaluation of the comprehension level of the students 
relative to the instructional unit. If oral or written questions are to be used 
to measure student comprehension levels, they shall be included in the 
instructional unit's description. The evaluative technique may be used 
throughout the unit or at the end;
(ix) a completed form cross-referencing the instructional units to the topics 
identified in subparagraph (B) of this paragraph. A form to cross reference the 
instructional units to the required topics and topics unique to the course will 
be provided by the division.
(E) Instructor training guides. An instructor training guide contains a 
description of the plan, training techniques, and curriculum to be used to train 
instructors to present the concepts of the approved driving safety course 
described in the applicant's driving safety course guide. To be approved, each 
course owner or primary consignee shall submit as part of the application an 
instructor training guide that is bound or hole-punched and placed in a binder 
and that has a cover and a table of contents. The guide shall include the 
following:
(i) a statement of the philosophy and instructional goals of the training 
course;
(ii) a description of the plan to be followed in training instructors. The plan 
shall include, as a minimum provisions for the following:
(I) instruction of the trainee in the course curriculum;
(II)  training the trainee in the techniques of instruction that will be used in 
the course;
(III) demonstration of desirable techniques of instruction by the instructor 
trainer;
(IV) a minimum of 15 minutes of instruction of the course curriculum by the 
trainee under the observation of the instructor trainer as part of the basic 
training course;
(V) time to be dedicated to each training lesson; and
(VI) a minimum of 800 minutes of instruction of the course in a regular approved 
course under the observation of a licensed instructor trainer;
(iii) instructional units sufficient to address the provisions identified in 
clause (ii)(I)-(V) of this subparagraph. The total time of the units shall 
contain a minimum of 24 instructional hours. Each instructional unit shall 
include the following:
(I) the subject of the unit;
(II) the instructional objective(s) of the unit;
(III)  time to be dedicated to the unit;
(IV) an outline of major concepts to be presented;
(V) instructional activities to be used to present the material, i.e., lecture, 
films, other media, small-group discussions, workbook activities, written and 
oral discussion questions. When small-group discussions are planned, the course 
guide shall identify the questions that will be assigned to the groups;
(VI) instructional resources for each unit; and
(VII) techniques for evaluation of the comprehension level of the students 
relative to the instructional unit. If oral or written questions are to be used 
to measure student comprehension levels, they shall be included in the 
instructional unit's description. The evaluative technique may be used 
throughout the unit or at the end.
(F) Examinations. Each course owner or primary consignee shall submit for 
approval as part of the application tests designed to measure the comprehension 
level of students at the completion of the driving safety course and the 
instructor training course. Instructors may not be certified or students given 
credit for the driving safety course unless they score 70% or more on the final 
test. The course guide shall identify alternative testing techniques to be used 
for students with reading, hearing, or learning handicaps and policies for 
retesting students who score less than 70% on the final exam. The applicant may 
choose not to provide alternative testing techniques; however, students shall be 
advised of courses providing alternative testing prior to enrollment in the 
course. Test questions may be short answer, multiple choice, essay, or a 
combination of these forms.
(G) Student course evaluation. Each student instructed in a driving safety 
course shall be given an opportunity to evaluate the course and the instructor 
on an official evaluation form. A master copy of the evaluation form will be 
provided by the agency. The evaluation forms must be collected at the conclusion 
of each class and for a period of one year kept on file at the location of the 
school.
(H) Instructor performance. Driving safety course owners or primary consignees 
with more than one instructor shall submit a written plan describing how 
monitoring of instructor performance will be accomplished. The plan shall 
identify the criteria upon which the instructors will be evaluated, the 
procedure for evaluation, the frequency of evaluation, and the corrective action 
to be taken when instructors do not meet criteria established by the owner or 
primary consignee.
(I) Instructor inservice training. Schools shall submit a written plan for 
providing their instructors with inservice education. The plan shall identify 
techniques to be used to provide inservice training as needed to keep the 
instructors current in curriculum changes, course procedures, and State Board of 
Education rules. Instructors shall attend a minimum of six hours of inservice 
provided by the course owner or primary consignee every two years.
(J) State-level evaluation of driving safety courses. Each course owner or 
primary consignee shall collect adequate student data to enable the agency to 
evaluate the overall effectiveness of a course in reducing the number of 
violations and accidents of persons who successfully complete the course. For 
each student, each course owner or primary consignee shall collect and upon 
request provide to the agency the following data:
(i)  complete legal name;
(ii) driver's license number;
(iii) date of birth; and
(iv) date of course completion. Information derived from the study of the data 
will be used by the agency to evaluate the state's overall driving safety course 
and as a part of the total evaluation of individual courses. The data, as 
prescribed by the agency shall be provided within a 30-day period 24 months 
subsequent to approval. The agency shall within 12 months of receiving the data 
conduct an evaluation of the driving safety courses in general and of each 
approved course. The evaluation shall be conducted relative to the pre-course 
and post-course driving records of the graduates.
(K) Innovative driving safety courses. Upon the written request of an applicant, 
the commissioner may approve the course structure of an innovative driving 
safety course which would not otherwise be in compliance with this chapter. The 
approval of an innovative driving safety course shall expire at the end of one 
year unless timely renewed. To renew the approval, an applicant must submit a 
renewal request and complete report at least 30 days prior to expiration. The 
renewal request and report must provide evidence acceptable to the commissioner 
of the accomplishment of the implementation plan and goals submitted for the 
previous year, and include an acceptable updated plan of implementation and 
statement of goals for the following year. A written request must include a 
report that provides the following:
(i)  documentation of the developmental process;
(ii) the actual presentation that would be used;
(iii) justification demonstrating how the offered course would more completely 
satisfy the educational objectives of driving safety than a driving safety 
course that could be otherwise approved pursuant to this chapter;
(iv) a specific plan of implementation and statement of goals for the immediate 
year following approval;
(v)  if a renewal request, an evaluation of the effectiveness of the course for 
the previous approved period; and
(vi) any other information requested by the commissioner to adequately review 
the presentation.
(2)  Teenage driver education.
(A) A 14-year-old student who will be 15 years old before the classroom phase of 
the driver education course ends may receive classroom instruction. A 14-year-
old shall not be given behind-the-wheel in-car instruction.
(B) Driver training schools instructing 14- to 18-year-old students shall meet 
the requirements promulgated in the state-approved curriculum guide for driver 
education, the "Standards for an Approved Course in Driver Education for Texas 
Schools," and this chapter.
(C) Driver training schools, who desire to instruct persons ages 14 to 18 years, 
shall provide classes with uniform beginning and ending dates. Students shall be 
enrolled and in attendance the class prior to the seventh hour of classroom 
instruction.
(i) Students shall proceed in a sequence approved by the director. The units of 
instruction shall meet the requirements of the approved curriculum guide.
(ii) Students shall receive classroom instruction directly from an agency-
licensed and certified instructor who shall be in the classroom and available to 
students during the entire 32 hours of instruction including self-study 
assignments. Instructors shall not have other teaching assignments or 
administrative duties during the 32 hours of classroom instruction.
(iii) Self-study assignments that present units outlined in the curriculum guide 
shall not exceed 15 minutes per clock hour of instruction and shall be presented 
to the entire class simultaneously.
(D) Each student under 18 years of age shall be provided with a driver education 
textbook currently adopted by the State Board of Education.
(E)  A copy of the current edition of the Texas Drivers Handbook, motorcycle 
supplement, and/or agency-approved study material shall be furnished to each 
student enrolled in the classroom phase of the driver education course.
(F)  The school director is responsible for ensuring that each driver education 
instructor is providing instruction as outlined in the most recent edition of 
the "Standards for an Approved Course in Driver Education for Texas Schools" and 
the current state-approved curriculum guide. In addition, the school director is 
responsible for obtaining a current copy of the "Standards for an Approved 
Course in Driver Education for Texas Schools" and a current state-approved 
curriculum guide appropriate for the phase of instruction.
(G) A school may not permit more than 35 students per driver education class.
(H)  When a student changes schools, interrupting the classroom phase of the 
driver education course, the school may grant credit for the hours completed, 
provided the student enters and completes within 90 days and completes a course 
comparable to that in which the student first enrolled. Any credit received 
shall be documented in the student file.
(I) The classroom phase of driver education shall be completed in no fewer than 
20 and no more than 90 calendar days from the first day of class, with no more 
than two hours scheduled in one day. This shall not circumvent the attendance 
and progress policies.
(J) All behind-the-wheel instruction shall consist of actual driving practice 
while the motor vehicle is in motion or as provided for in the curriculum guide 
for driver education. No school shall permit a ratio of less than two students 
or more than four students per instructor, except as allowed by subparagraph 
(L)(iii) of this paragraph. The behind-the-wheel phase shall be completed in no 
less than 14 calendar days or more than 180 calendar days from the first actual 
driving lesson.
(K) A student must have a valid driver's license or instruction permit in the 
student's possession during behind-the-wheel instruction.
(L) Driver training schools are authorized exceptions to the standards for an 
approved course in driver education and the state-approved curriculum guide 
(driver education classroom and in-car instruction) as follows.
(i) The maximum amount of in-car instruction time permissible for a driver 
training school instructor to teach minors shall not exceed eight hours per day.
(ii) A student may receive two 30-minute sessions or one 60-minute session at 
the discretion of the instructor of behind-the-wheel in-car instruction per day. 
This does not remove the minimum requirement for seven hours of observation time 
or alter the 20-day minimum time frame for concurrent courses or the 14-day 
minimum time frame for in-car training courses as currently outlined in the 
agency-approved curriculum guide and the standards for an approved course in 
driver education.
(iii) In-car instruction may be provided for only one student in those instances 
where it is not practical to instruct more than one student or a hardship would 
result if scheduled instruction is not provided. Documentation shall be 
maintained to support the in-car instruction for one student.
(iv)  Schools are not required to employ supervising teachers to supervise and 
evaluate teaching assistants in driver education courses.
(v)  Motion picture films, slides, videos, tape recordings, and other media 
approved by the director that present concepts outlined in the curriculum guide 
may be used as part of the required clock hours of the 32 hours of classroom 
instruction. Units scheduled to be instructed may also be conducted by guest 
speakers as part of the required clock hours of instruction. Together, these 
shall not exceed 640 minutes of the total 32 clock hours.
(3)  Instructor development courses.
(A) Instructors shall successfully complete 40 clock hours (50 minutes of 
instruction in a 60-minute period) in traffic safety education and driver 
training under the supervision of a driver training instructor trainer. 
Supervision is considered to have occurred when the instructor trainer is 
present and personally provides the 40 clock hours of training excluding those 
clock hours approved by agency staff which may be presented by a guest speaker 
or using films and other media that pertain directly to the concepts being 
taught.
(B) Instruction records shall be maintained by the school and instructor trainer 
for each instructor-trainee and shall be available for inspection by authorized 
division representatives at any time during the training period and/or for 
license investigation purposes. The instruction record shall include the 
trainee's name, address, driver's license number, and other pertinent data; name 
and instructor license number of the person conducting the training; dates of 
instruction, lesson time, and subject taught during each instruction period. 
Each record shall also include grades or other means of indicating the trainee's 
aptitude and development. Upon satisfactory completion of the training course, 
the instructor trainer conducting the training will certify one copy of the 
instruction record for attachment to the trainee's application for licensing, 
and one copy will be maintained in a permanent file at the school.
(C) All student instruction records submitted for the agency-approved instructor 
development course shall be signed by the course owner or primary consignee. 
Original documents shall be submitted.
(D) Driving safety instructor development courses may be offered at locations 
other than at the course owner or primary consignee facilities if such locations 
are approved classroom facilities of a licensed school or registered extension 
which are approved to offer the driving safety course being taught. The course 
shall be presented by a properly licensed instructor trainer.
(E) The driving safety course owner or primary consignee shall submit dates of 
instructor development course offerings, locations, class schedules, and 
scheduled instructor trainers' names and license numbers at least 30 days before 
the courses are offered.
(F) All adult driver education instructor development courses shall be taught at 
a licensed school approved to offer an adult driver education instructor 
development course. The course shall be taught by a properly licensed instructor 
trainer.
(G)  Schools desiring to teach adult driver education instructor development 
courses shall either submit course offerings as a part of the school application 
or, if offered periodically, submit the dates and scheduled instructors' names 
and license numbers at least 30 days before teaching the course. The 
commissioner may grant exceptions to this rule on an individual basis.
(H)  Minimum course content for adult driver education instructors will include 
40 hours in the following subjects:
(i) techniques of instruction -five hours:
(I) qualities of a competent  11>instructor;
(II) the learning process;
(III) methods of teaching;
(IV)  development of habits;
(V) demonstration teaching;
(VI)  use of instruction material;
(VII) use of training aids;
(VIII) course preparation and  11>lesson plans;
(IX) testing and evaluation; and
(X) duration and frequency of lessons;
(ii)  personality factors affecting the driver and pedestrian-two hours:
(I) natural abilities;
(II) senses;
(III) mind and nerves;
(IV) bones and muscle;
(V) knowledge of vehicle, road, traffic, and self;
(VI) character:
(-a-) attitudes; and
(-b-) emotions;
(VII) reaction time;
(VIII) circumstances affecting personality:
(-a-) poisons-alcohol, other drugs, carbon monoxide;
(-b-) over-the-counter, prescription, and illegal drugs;
(-c-) diseases-heart ailments, epilepsy, diabetes, insanity; and
(-d-) fatigue-exhaustion, tension, monotony.
(iii) state laws relating to the operation of motor vehicles-six hours:
(I)  registration of vehicles;
(II) certificate of title;
(III)  operation of vehicles;
(IV) uniform act;
(V) miscellaneous offenses;
(VI) driver's license; and
(VII) safety responsibility. (The titles correspond to  11>those used in the 
Texas Motor Vehicle Law book.);
(iv) driving procedures-eight hours:
(I)  city driving;
(II) rural driving;
(III) night driving;
(IV) winter driving;
(V) mountain driving;
(VI)  freeway driving;
(VII) driving in rain, fog, sandstorms, etc.;
(VIII) driving on slick roads  11>and running off road;
(IX)  traffic signs, markings, and signals;
(X) driver signals;
(XI) passing problems on two-  11>and three-lane roadways;
(XII) proper passing procedures;
(XIII) proper use of rearview mirrors;
(XIV) vehicle braking and stopping distances;
(XV) following distances;
(XVI) right-of-way, when and how to yield it;
(XVII) vehicle acceleration and deceleration;
(XVIII) blowout hazards and recovery procedures;
(XIX) problems and procedures involving trucks and supersize motorized  
11>equipment; and
(XX) yielding right-of-way to emergency vehicles;
(v)  physical forces affecting the motor vehicle in motion-three hours:
(I) forces of gravity;
(II) friction;
(III)  acceleration, mass, and force;
(IV) inertia and centrifugal force;
(V) kinetic energy and momentum;
(VI) kinetic energy and braking; and
(VII) horsepower and acceleration;
(vi)  highway characteristics -two hours:
(I) types of highways-primary,  11>secondary, expressway, freeway, farm or ranch 
road;
(II)  types of roadways-two-way two-lane, two-way three-lane, two-way multilane, 
two-way multilane divided, one-way multilane;
(III) parking;
(IV)  freeway characteristics;
(V) traffic controls:
(-a-) signs-shape, color, location, importance;
(-b-) traffic marking-center line, lane  11>lines, no pass zone, transition 
markings, turn lane marking, stop lines, crosswalk lines, etc.; and
(VI)  signals-classification location, type, timing;
(vii) the automobile-systems and maintenance-two hours:
(I)  electrical-generator or alternator, battery, lighting, electric-powered 
equipment;
(II) cooling system;
(III) lubrication and fuel systems;
(IV) power train-engine,  11>transmission, differential;
(V)  brake system;
(VI) wheels and tires-caster, camber, toe-in, balance, inflation, tire 
condition, and care;
(VII) exhaust system;
(VIII) instruments and gauges;
(IX) compartment adjustments-seat, ventilation, mirrors, headrests, seat belts, 
and shoulder harness;
(X)  starting the engine and warm-up procedures;
(XI) proper use of safety devices-door locks, seat belts, and shoulder harness, 
headrests, etc.; and
(XII) windshield wipers, heater, defroster;
(viii)  behind-the-wheel elementary lessons (demonstration in appropriate 
vehicle and practice to be performed in presence of instructor)-hours:
(I) starting;
(II) steering;
(III) stopping;
(IV)  shifting gears;
(V) backing;
(VI) turning-right and left; and
(VII) parking and starting on grade;
(ix)  behind-the-wheel driving safety lessons (demonstration in appropriate 
vehicle and practice to be performed in presence of instructor)-six hours:
(I) developing good seeing  11>habits;
(II) speed control;
(III) safe following;
(IV) lane driving and lane changing;
(V) intersections and right-of-way;
(VI) proper signaling;
(VII) correct turn procedures;
(VIII) detection of and handling problems-vehicle, cycle, pedestrian;
(IX) freeway driving-ramp use, entering, exiting, lane use, emergency stopping;
(X) parking procedures;
(XI) entering traffic from parked position; and
(XII) night driving;
(x) school and instructor licensing requirements-two hours:
(I) school licensing requirements;
(II)  instructor licensing requirements;
(III) classroom and automotive equipment requirements;
(IV) required student records;
(V)  contract requirements; and
(VI) deportment of instructors;
(xi) specialized training-two hours:
(I) students with physical, mental, or emotional handicaps;
(II) illiterate students;
(III) non-English-speaking students; and
(IV) habitual violators and problem drivers.
(I) Applicants shall complete 40 hours of training in the driving safety 
curriculum that shall be taught. Of the 40 hours, 24 shall cover techniques of 
instruction and in-depth familiarization with materials contained in the driving 
safety curriculum. The additional 16 hours shall consist of practical teaching.
(b) If, upon review and consideration of an original, renewal, or amended 
application for course approval, the commissioner determines that the applicant 
fails to meet the legal requirements, the commissioner shall notify the 
applicant, setting forth the reasons for denial in writing.
(c) The commissioner may revoke approval of an institution's course(s), 
including, but not limited to:
(1) any statement contained in the application for the course approval that is 
untrue; or
(2) when the institution has failed to maintain the faculty, facilities, 
equipment, or courses of study on the basis of which approval was issued.
sec.176.20. Contracts-Students.
(a) No person shall be instructed, either theoretically or practically, or both, 
to operate or drive motor vehicles until after a written legal contract has been 
executed.
(b)  All driver training school contracts shall contain at least the following:
(1) the student's full legal name and driver's license or social security 
number. If a student who is a minor is unable to provide a driver's license or 
social security number, the driver's license number or social security number of 
the parent shall be used;
(2) the full legal name and license number of the school and extension 
registration number, if appropriate;
(3) the specific course to be taught;
(4) a statement indicating the agreed total contract charges;
(5) terms of payment;
(6) number of classroom lessons;
(7) length of each lesson or course;
(8) the school's cancellation and refund policy;
(9) a statement indicating the specific location, date, and time that 
instruction is scheduled to begin and the date classroom instruction is 
scheduled to end;
(10) statements substantially as follows.
(A)  "I have been furnished a copy of the school tuition schedule; cancellation 
and refund policy; and school regulations pertaining to absence, grading policy, 
progress, and rules of operation and conduct."
(B) The school is prohibited from issuing a certificate of completion if the 
student has not met all of the requirements for course completion and the 
student should not accept a certificate under such circumstances.
(C) "I further realize that any grievances not resolved by the school may be 
forwarded to the Division of Proprietary Schools and Veterans Education, and 
Driver Training, Texas Education Agency, 1701 North Congress Avenue, Austin, 
Texas 78701, (512) 475-3547."
(D) If the course is driving safety, the statement required in subparagraph (C) 
of this paragraph shall include the name and address of the course provider.
(c) In addition to the items required for all driver training school contracts, 
all driver education student contracts shall contain the following:
(1) number of behind-the-wheel lessons;
(2)  rate per lesson-classroom instruction or course;
(3) rate per lesson-behind-the-wheel instruction or course;
(4) rates for use of school car for road test (if extra charge is made);
(5) the signature of the school director, acting school director, or 
administrative staff member; and
(6) the student's signature, or if the student is less than 18 years of age, the 
signature of the parent or guardian, except that the signature of the parent or 
guardian is not required for persons under age 18 who are, or have been, married 
or whose disabilities of minority have been removed generally by law. Instead, 
such persons shall:
(A) present a marriage certificate or a divorce decree (but not an annulment 
decree) or other satisfactory evidence of marriage or of having been married;
(B) present a court order showing removal of disabilities of minority; or
(C) present a notarized parental authorization.
(d) In addition to the items required for all driver training school contracts, 
all driving safety student contracts shall contain the following:
(1) signature and license number of the instructor; and
(2) signature of the student.
(e) Driving safety may use a group contract which includes more than one 
student's name.
(f) The original of the contract shall be given to each driver education 
student.
(g) A copy of each contract shall be a part of the student files maintained by 
all driver training schools.
(h) Schools shall submit proposed or amended contracts to the director, and 
those documents shall be approved prior to use by schools.
(i) Contracts for group instruction must meet all legal requirements.
sec.176.21. Tuition and Fees.
(a) All tuition, fees, and other charges shall be stated in the school's 
application for licensure and shall be disclosed to potential students prior to 
enrollment.
(b) The school shall submit method(s) of payment that are available to enrolling 
students.
(c) Students shall not be held liable for any tuition, fees, or other charges 
not previously disclosed to the director.
(d) Any funds received from, or on behalf of, a student shall be recorded in a 
format that is readily accessible to representatives of the Texas Education 
Agency and acceptable to the director. Receipts shall be issued to the student. 
The funding source and the reason for the charges shall be clearly identified on 
both documents. Additionally, these records shall be posted and kept current.
sec.176.22. Progress.  Appropriate standards shall be implemented to ascertain 
the progress of the students.
(1) Driver education.
(A) Progress standards shall meet the requirements of the currently adopted 
curriculum guide.
(B) Each school shall submit to the director for approval an established 
procedure to ensure that all students demonstrate an acceptable level of mastery 
of the essential elements for driver education. Mastery is a prerequisite to 
awarding a grade of 70 or above.
(C)  Evidence of mastery shall be determined by one or more of the following 
methods:
(i) unit tests;
(ii) assignments;
(iii)  class participation;
(iv) teacher observation; and
(v)  skills performance checklist.
(D) The progress evaluation record shall be of the type and nature to reflect 
whether the student is making satisfactory progress to the point of being able 
to complete all subject matter within the allotted time provided in the 
currently approved course curriculum for driver education.
(2) Driving safety. Progress standards for driving safety shall meet the 
requirements as set forth in sec.176.19(a)(1)(F) of this title (relating to 
Courses of Instruction).
sec.176.23. Attendance.  Appropriate standards, which include positive records 
of student attendance, shall be implemented to ascertain the attendance of the 
students.
(1) Driver education.
(A) Absence for a full-hour class period shall be charged when the student in 
driver education is not present for a full 55 minutes of a 60-minute period, 
which is considered the equivalent to one hour of instruction. Break periods 
shall be provided for each instructional hour and shall not be combined to 
shorten the course.
(B) The attendance policy shall stipulate that students who accumulate absences 
more than 25% of the scheduled classroom hours for teenage driver education 
shall be terminated, and a refund shall be totally consummated within 30 days. 
The student whose enrollment is terminated for violations of the attendance 
policy may not reenter before the start of the next new class.
(C) The student may receive credit for previous training if the student reenters 
and completes the classroom portion of the course within 90 days of the first 
scheduled day of class on the original contract.
(D) School holidays, such as summer vacation, Christmas holidays, etc., shall 
not be considered as days of absence.
(2) Driving safety. A school which offers a driving safety course shall document 
the hours scheduled each day and each hour attended in a manner approved by the 
director.
sec.176.24. Leaves of absence.
(a) Leaves of absence for reasonable purposes acceptable to the school director 
shall not exceed the lesser of 30 school days or 60 calendar days. This does not 
remove the requirement of completion of the classroom phase for driver education 
in 90 days and the behind-the-wheel phase in 180 days.
(b) A student shall be granted only one leave of absence.
(c) The school attendance records shall clearly show the dates for which the 
leave of absence was granted. A written statement as to why the leave of absence 
was granted signed by both the student and the school director indicating 
approval shall be placed in the individual student file.
(d) If the student fails to return from leave on the date and time specified, 
the student's enrollment shall be terminated, and a refund totally consummated 
within 30 days.
(e) The leave of absence policy shall be provided to the student prior to 
enrollment.
(f)  All schools must maintain a master record of attendance for each student 
which clearly indicates the number of scheduled hours each day and the hours of 
absence. The instructor's roll books must indicate a positive record of each 
student's attendance. Entries in the roll books shall be made in ink.
sec.176.25. Make Up.
(a) A student shall be considered absent when not in attendance at a regularly 
scheduled class time and when not in attendance at another regularly scheduled 
alternate class time on the same day. Any period of absence for any portion of 
scheduled instruction will require that the student complete that portion of 
scheduled instruction. Certificates of completion shall be issued only to 
students who have received all instruction as identified in the course 
description.
(b) Schools shall submit a make-up policy for approval. All make-up lessons 
shall be documented on the individual instruction record, and evidence of 
coursework performed shall be placed in the student file. Make-up lessons other 
than alternative scheduling may be presented in any sequence.
(1) Teenage driver education and driving safety. For a policy that allows 
students to attend a missed lesson at a later date during a regularly scheduled 
class, the class shall be engaged in the same lesson the student missed 
previously.
(2) Teenage driver education only.
(A) For a policy that allows students to perform a self-study or individual 
make-up session, a synopsis of each lesson shall be submitted as part of the 
application for licensure. A sample of each make-up lesson, clearly labeled as 
"make-up for the driver education course," shall be available for review by the 
agency at the school. Each lesson shall be clearly identified as a make-up 
lesson and shall be identified as to the units of instruction to be covered. A 
licensed instructor shall be available without other teaching assignments to 
provide assistance directly to students during the self-study lesson. Self-study 
make-up shall be considered an absence and be subject to the attendance policy.
(B) For a policy that provides alternative scheduling, a school may allow a 
student to attend an alternative class on the same calendar date as the class 
previously scheduled to attend. The school may provide alternative scheduling 
only if the sequence of instruction will be maintained by the identical lesson 
being offered in the alternative class time. In addition to all other 
requirements, the student instruction record shall reflect the time of day the 
alternate class was attended. A student selecting alternative scheduling shall 
not be considered absent.
(c) All classroom make-up lessons shall be completed by the student within 90 
days of the first scheduled day of class. If the student fails to complete the 
entire classroom phase, including all make-up lessons, within the 90-day period, 
the student shall be terminated. Make-up work shall not be authorized for the 
purpose of removing absences.
sec.176.26. Conduct policy.
(a) The school shall submit a copy of the policies pertaining to conduct for 
approval.
(b) A statement regarding the following shall be submitted:
(1) conditions for dismissal; and
(2) conditions for reentrance of those students dismissed for violating the 
conduct policy.
sec.176.27. Cancellation and Refund Policy.
(a) School cancellation and refund policies shall be in accordance with Texas 
Civil Statutes, Article 4413(29c),  s13(h).
(b) Refunds for all driver training schools shall be completed within 30 days 
after the effective date of termination. Proof of completion of refund shall be 
the refund document or copies of both sides of the cancelled check and shall be 
on file within 120 days of the effective date of termination. All refund checks 
shall identify the student to whom the refund is assigned. In those cases where 
multiple refunds are made using one check, the check shall identify each 
individual student and the amount to be credited to that student's account.
(c) In reference to Texas Civil Statutes, Article 4413(29c), sec.13(h)(4), a 
school is considered to have made a good faith effort to consummate a refund if 
the student file contains evidence of the following attempts:
(1) certified mail to student's last known address;
(2) certified mail to the student's permanent address; and
(3) certified mail to the address of the student's parent, if different from the 
permanent address.
(d) If it is determined that the method used by the school to calculate refunds 
is in error or the school does not routinely pay refunds within the time 
required by Texas Civil Statutes, Article 4413(29c), sec.13(h)(2)(E), the school 
shall submit a report of an audit which includes any interest due as set forth 
in Texas Civil Statutes, Article4 4413(29c), sec.13(h)(4), conducted by an 
independent certified public accountant or public accountant registered with the 
State Board of Public Accountancy, of the refunds due former students. The audit 
opinion letter shall be accompanied by a schedule of student refunds due which 
shall disclose the following information for the previous two years from the 
date of request by the agency for each student:
(1) name, address, and either social security number or driver's license number;
(2) last date of attendance, date of termination; and
(3) amount of refund with principal and interest separately stated, date and 
check number of payment if payment has been made, and any balance due.
(e) All students trained by unlicensed instructors may be entitled to refund of 
tuition and fees for the training provided by the unlicensed instructors as 
determined by the director.
sec.176.28. Facilities and Equipment.
(a) Each driver training school licensed by the commissioner shall display, in a 
prominent place in each location, a sign or notice indicating the following:
(1) rates per lesson or course-classroom instruction;
(2) rates per lesson or course-behind-the-wheel instruction;
(3) rates for use of school vehicle-road tests (if extra charge is made); and
(4) length of lessons and course-classroom and behind-the-wheel.
(b) No classroom facility will be located in a private residence. Driver 
education schools shall have a permanent facility. The classroom facilities, 
when used for instruction, shall contain at least the following:
(1) adequate seating facilities and tables or desks for all students being 
trained; tables or desks are not required for driving safety course classes;
(2) a chalkboard, a dry-erase board, or felt display board for the driver 
education classroom, which is visible from all seating positions;
(3) adequate charts, diagrams, mock-ups, and pictures relating to the operation 
of motor vehicles, traffic laws, physical forces, and correct driving 
procedures;
(4) any materials that have been approved as a part of the course approval.
(c) All schools offering teenage driver education shall maintain an office in a 
place other than a private residence.
(d) The amount of classroom space shall meet the use requirements of the maximum 
number of current students in class with appropriate seating facilities as 
necessitated by the activity patterns of the course.
(e) Enrollment shall not exceed the design characteristics of the student work 
stations. The facilities shall meet any state and local ordinances governing 
housing and safety for the use designated.
sec.176.29. Motor Vehicles.
(a) All behind-the-wheel instruction of students in driver education training 
schools shall be conducted in motor vehicles owned or leased by the driver 
training school, unless the student is physically handicapped and shall use 
special vehicle controls. All school motor vehicles and vehicles owned by 
physically handicapped students which are used for the purposes of demonstration 
and/or practice of driving lessons shall:
(1) be equipped with dual controls on the foot brake (and with a clutch on 
vehicles with manual transmission), located within easy reach of the instructor, 
that is capable of bringing the vehicle to a stop and otherwise be equipped in 
accordance with Texas motor vehicle laws;
(2)  be equipped with safety belts, and students and instructors shall comply 
with requirements of Texas Civil Statutes, Article 6701d, sec.107C;
(3)  be properly registered in compliance with the motor vehicle registration 
laws of Texas and bear a current motor vehicle inspection certificate, if 
required;
(4) be insured by a company authorized to do business in Texas with a continuous 
liability insurance policy in the amount specified in Texas Civil Statutes, 
Article 6701h;
(5) be equipped with an extra inside rearview mirror on the instructor's side 
and an outside rearview mirror on both sides;
(6) bear a conspicuously displayed, securely fastened sign to the front and rear 
stating "Student Driver." A sign similarly displayed bearing the name of the 
driver training school under which it is licensed may be used in lieu of the 
student driver sign. The sign shall be in plain view and shall have contrasting 
letters not less than 3 1/2 inches in height, readable from a distance of not 
less than 100 feet;
(7) be maintained in safe mechanical and physical condition at all times;
(8) be equipped with applicable mechanical devices when used in training of 
physically handicapped students (students may use their own vehicles if special 
mechanical devices are necessary); and
(9) be equipped with cushions for the proper seating of students if and when 
such are necessary.
(b) Before filing an original, renewal, or reinstatement application for a 
license with the agency, each driver training school shall cause the insuring 
company or carrier to issue a certificate on forms furnished by the commissioner 
and certifying to the director that the insurance company or carrier has issued 
a policy or policies of insurance, in the designated amounts, for the vehicles 
listed and any other such information as requested. An insurance certificate or 
certificates shall accompany and account for each motor vehicle listed by each 
driver training school vehicle fleet schedule form as provided by the director 
and filed with the agency. In the event insurance coverage for any vehicle used 
for driver instruction or driver training purposes is not renewed, the driver 
training school shall give written notice to the agency at least 10 days prior 
to the expiration date of the insurance coverage.
(c) In the event the motor vehicle insurance coverage is to be cancelled, a copy 
of the written notice of cancellation shall be furnished immediately upon 
receipt of notice to the division by registered or certified mail.
sec.176.30. Student Complaints.
(a) The school shall have a written grievance procedure approved by the director 
that is disclosed to all students. The function of the procedure will be to 
attempt to resolve disputes between students, including drops and graduates, and 
the school. Adequate records shall be maintained.
(b) The school shall make every effort to resolve complaints at the school.
sec.176.31. Records.
(a) All schools shall make available the records and necessary data required for 
licensure and to show compliance with the legal requirements for inspection by 
authorized representatives of the agency. There may be unannounced compliance 
surveys at each school each year. Other compliance surveys may be announced at 
the discretion of the director.
(b) The schools shall retain all student records for at least three years. The 
actual driving safety comprehension test does not have to be retained; however, 
the test score must be in the student's records. The director may require a 
school to retain the actual test of each student for a designated period of time 
if deemed necessary by the director to show compliance with the legal 
requirements.
(c) All driver training schools licensed by the agency shall maintain a 
permanent record of instruction given to each student.
(1) Individual students.
(A) The entries on the individual student record form shall be made in ink. The 
minimum requirements indicating attendance entries shall be maintained by using 
symbols or abbreviations of the following:
(i) absent;
(ii) make-up;
(iii)  present;
(iv) termination;
(v) withdraw; and
(vi) transfer.
(B) The individual student record form shall include, but not be limited to, the 
following:
(i) name and classroom address of the school;
(ii) name, full address, telephone number of the student, and date of birth;
(iii) applicable areas of instruction;
(iv) date of enrollment;
(v) date instruction terminated, if applicable;
(vi) type and number of license held by the student, including the expiration 
date and licensing state;
(vii) month, day, year, and time of instruction;
(viii)  each unit of instruction;
(ix) grade earned for each unit;
(x) instruction hours for classroom, simulators, behind-the-wheel, and 
observation;
(xi) printed name, signature, and license number for each instructor;
(xii) beginning and ending dates of the course;
(xiii) statement of assurance signed by student and instructor that the record 
is true and correct; and
(xiv) printed name and signature of the school director or assistant school 
director.
(C) The individual student record form for driver education shall indicate all 
applicable areas of training as follows:
(i)  adult classroom;
(ii) adult behind-the-wheel;
(iii)  adult simulation;
(iv) teen classroom;
(v)  teen behind-the-wheel and observation; and
(vi) teen simulation.
(2) Group contract students. The record for group contract students shall 
contain a master instruction record indicating date and type of instruction 
given by subject matter and signature and license number of the instructor. 
Attached to the master instruction record will be a roster of students 
satisfactorily completing this course. Upon completion of each group contract 
course, each student enrolled shall be furnished a certificate indicating 
completion of sessions attended.
(3) Student records form. Students shall sign the student record form maintained 
by the school. The signature statement shall state that the student verifies the 
instruction received was as shown on the instruction record form.
(d) Each driver training school shall, upon request, furnish each individually 
contracted student a duplicate of his or her instruction record when all of the 
courses contracted for are completed or the student otherwise ceases taking 
instruction at or with the school providing all financial obligations have been 
met by the student.
(e) A student who changes schools before completing the classroom or laboratory 
instruction for driver education shall receive credit for the hours completed 
provided the student enters and completes within 90 days a course which is at 
least comparable to that in which the student was first enrolled. The teacher of 
the course in which the student was originally enrolled shall execute the driver 
education certificate (Texas driver education certificate), attaching thereto a 
statement showing the specific lessons covered by the student as outlined in the 
state-approved curriculum guide and the number of hours completed; the teacher 
shall mail the certificate to the chief school official in the school to which 
the student is transferring.
(f) Each school shall maintain a master student registration list consisting of 
at least the information in this paragraph. An entry shall be made on this list 
for any person who signs an enrollment agreement, makes a down payment to attend 
the school, or attends a class. The entry shall be made on the date the first of 
these events occurs. The following information is required:
(1) date;
(2) name of student;
(3) address of student including city, state, and zip code;
(4) telephone number;
(5) social security number or driver's license number, if available;
(6) date of birth; and
(7) name of course.
sec.176.32. Names and Advertising.
(a) No school shall adopt, use, or conduct any business under a name that is 
like, or deceptively similar to, a name used by another school without written 
consent of that school. School names approved by the Department of Public Safety 
as of August 31, 1989, may be approved by the agency. No new certificate of 
approval or license will be issued to a school after August 31, 1989 with a name 
like or deceptively similar to a name used by another school. Further, the name 
used in advertising shall be as stated on the driver training school license.
(b) No school or extension shall, by advertisement or otherwise, state or imply 
that a driver's license, permit, or certificate of completion is guaranteed or 
assured to any student or individual who will take or complete any instruction 
or enroll or otherwise receive instruction in any driver training school.
(c) No school shall advertise without including the school name or the school 
license number exactly as it appears on the school license. No extension shall 
advertise without including the extension registration number or the school 
name.
(d)  The director may require that a school furnish proof to the agency which 
substantiates any advertising claims made by the school or extensions. Failure 
to provide acceptable proof may require that a retraction of such advertising 
claims be published by the school in the same manner as the disputed 
advertisement, and continuation of such advertising shall constitute cause for 
suspension or revocation of the school license.
(e) No school shall design, manufacture, or supply to any court of the state any 
written materials which may be false, misleading, or deceptive.
sec.176.33. Application Fees and Other Charges.
(a) In the event of a change in ownership of the school, the new owner shall pay 
the same fee as that charged for an initial fee for a school.
(b) A late renewal fee shall be paid in addition to the annual renewal fee if 
the school fails to postmark a complete application for renewal at least 30 days 
before the expiration date of the driver training school license. The 
requirements for a complete application for renewal are found in sec.176.13(g) 
this title (relating to School Licensure). The complete renewal application must 
be postmarked with a date on or before the due date.
(c) Driver education instructors applying for school licensure as required by 
Texas Civil Statutes, Article 4413(29c), sec.13(b)(2), shall pay the fee amount 
set forth in statute in lieu of those fee amounts set forth following.
(d) License, application, and registration fees shall be collected by the 
commissioner and deposited with the state treasurer in accordance with the 
following schedule:
(1) initial fee for a school is $2,550;
(2) renewal fee for driver training school which offers only driver education 
courses is $200;
(3) fee for a change of address of a school is $270;
(4) fee for a change of name of a school or name of owner is 150;
(5) the application fee for each additional course is $35;
(6) the application fee for each director, assistant director, or administrative 
staff member is $20;
(7) the fee for each extension is $35;
(8) the fee for change in the name of the extension or extension owner is $35;
(9) the fee for change in the physical address of the extension is $35;
(10) each application for an original driver training instructor's license shall 
be accompanied by a processing fee of $50;
(11) annual instructor license fee is $37.50;
(12) late instructor renewal fee is $25;
(13) duplicate driver training instructor license fee is $8.00;
(14) fee for an investigation at a school to resolve a complaint is $1,000;
(15)  driver training school late renewal fee is $200;
(16) fee for certificate of course completion is $1.00.
sec.176.34. Uniform Certificates of Course Completion for Driving Safety Course.
(a) The owner or primary consignee of a driver safety course may request to 
purchase serially numbered uniform certificates of course completion by 
submitting an order form provided by the commissioner stating the number of 
certificates to be purchased and including payment of all appropriate fees.
(b) The owner or primary consignee shall maintain an ascending numerical 
accounting record approved by the director of the individuals receiving the 
certificates. The owner or primary consignee shall make available upon request 
copies of the issued certificates. The owner or primary consignee shall also 
maintain a policy which effectively ensures protective measures are implemented 
by the course owner or primary consignee to ensure that unissued certificates 
are secure at every location issuing certificates. The records and unissued 
certificates shall be available for review by representatives of the agency.
(c) Course owners and primary consignees shall issue or sell uniform 
certificates of course completion only to persons offering an approved driving 
safety course taught by agency-approved instructors.
(d)  Failure to provide numerical accounting of issued and unissued certificates 
or any other violations of this chapter shall be considered sufficient cause for 
revocation or denial of the school license and/or course approval.
(e)  Lost or stolen unissued certificates shall be reported to the director 
within two days of the discovery of the incident. In addition, the course owner 
or primary consignee shall be responsible for conducting an investigation to 
determine the circumstances surrounding the loss or theft of the certificates. A 
report of the findings of the investigation, including preventative measures for 
recurrence, shall be submitted to the director. The commissioner shall review 
the report, and if an unsatisfactory response is received, may suspend the right 
of the course owner or primary consignee to purchase certificates of course 
completion or assess a civil penalty as appropriate.
(f) A list of every instructor providing the course shall be submitted to the 
agency and updated quarterly reflecting any additions or deletions of 
instructors by the owner or primary consignee. Procedures shall be implemented 
by the owner or primary consignee to ensure that all persons instructing the 
course are properly licensed instructors.
(g) Procedures for issuing duplicate certificates shall be developed by each 
course owner or primary consignee. The procedures shall ensure that the 
duplicate certificate is clearly identified as being a duplicate of a previously 
issued certificate and shall indicate the control number of the previously 
issued certificate.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 15, 1992.
TRD-9200976
Criss Cloudt
Director, Planning Coordination
Texas Education Agency
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-9701
       
TITLE 22. EXAMINING BOARDS
Part XXII. Texas State Board of Public Accountancy
Chapter 519. Practice and Procedure
22 TAC sec.sec.519.32-519.46
The Texas State Board of Public Accountancy proposes new  ssec.519.32-519.46 
concerning prehearing discovery in proceedings conducted by the agency. The new 
sections are similar to the discovery provisions of the Texas Rules of Civil 
Procedure with minor changes conforming to general administrative law. These 
sections should allow for more thorough disclosure of information and evidence 
prior to hearings before the agency and should make discovery procedures in such 
cases consistent with a majority of other state agencies and civil litigation 
practice in general.
William Treacy, executive director, has determined that for the first five-year 
period the sections are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the sections.
Mr. Treacy also has determined that for each year of the first five years the 
sections are in effect, the public benefit anticipated as a result of enforcing 
the sections will be clarification of the agency's prehearing discovery 
procedures and improvement in consistency with current statutory authority 
regarding administrative procedures. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the sections as proposed.
Comments on the proposal may be submitted to J. Randel (Jerry) Hill, General 
Counsel, 1033 La Posada, Suite 340, Austin, Texas 78752-3892, (512) 450-7066.
The new sections are proposed under Texas Civil Statutes, Article 41a-1 sec.6, 
which provides the Texas State Board of Public Accountancy with the authority to 
promulgate rules deemed necessary or advisable to effectuate the Public 
Accountancy Act of 1991.
sec.519.32. Prefiled Testimony and Objections. Where ordered by the hearings 
officer, all testimony shall be prefiled. Objections to the testimony shall also 
be prefiled. The prefiled objections shall specifically cite, e.g. by volume, 
page and line(s), to the objectionable testimony and provide the legal basis for 
the objection. Any objections not prefiled are waived. The hearings officer 
shall announce his rulings on the objections prior to or at the beginning of the 
proceeding.
sec.519.33. Supplementing Prefiled Testimony and Objections.
(a)  At the discretion of the hearings officer, prefiled testimony may be 
supplemented with the introduction of newly discovered evidence, or when it 
becomes obvious to the witness that the original prefiled testimony was false or 
incomplete, or when substantive evidence has been denied as a result of a 
hearings officer ruling on prefiled objection.
(b) If prefiled testimony is supplemented as provided in this section, the other 
parties may be afforded the opportunity to supplement their prefiled testimony 
or prefiled objections. Supplementation by the other parties is limited to those 
subjects which were supplemented by the original witness.
sec.519.34. Forms and Scope of Discovery; Protective Orders; Supplementation of 
Responses.
(a) Forms of discovery. Permissible forms of discovery include:
(1) oral or written deposition of any party or nonparty;
(2) written interrogatories;
(3) request of a party for admissions of facts and the genuineness or identity 
of documents or things; and
(4) requests and motions for production, examination, and copying of documents 
or other tangible materials.
(b) Scope of discovery. Except as provided in subsection (c) of this section, 
unless otherwise limited by order of the hearings officer in accordance with 
these rules, the scope of discovery is as follows.
(1) In general. Parties may obtain discovery regarding any matter which is 
relevant to the subject matter in the pending proceeding whether it relates to 
the pending application, petition, protest, claim, or defense of any other 
party. It is not grounds for objection that the information sought will be 
inadmissible at hearing if the information sought appears reasonably calculated 
to lead to the discovery of admissible evidence. It is also not grounds for 
objection that an interrogatory propounded pursuant to sec.519.37 of this title 
(relating to Interrogatories to Parties) involves an opinion or contention that 
relates to fact or the application of law to fact, but the hearings officer may 
order such an interrogatory not be answered until after designated discovery has 
been completed or until a prehearing conference or other later time. It is also 
not grounds for objection that a request for admission propounded pursuant to 
sec.519.38 of this title (relating to Requests for Admissions) relates to 
statements or opinions of fact or of the application of law to fact or mixed 
questions of law and fact or that the documents referred to in a request may not 
be admissible at hearing.
(2) Documents and tangible things. A party may obtain discovery of the 
existence, description, nature, custody, condition, location, and contents of 
any and all documents (including papers, books, accounts, drawings, graphs, 
charts, photographs, electronic or videotape recordings, and any other data 
compilations from which information can be obtained and translated if necessary, 
by the person from whom production is sought, into reasonably usable form) and 
any other tangible things which constitute or contain matters relevant to the 
subject matter in the proceeding. A person is not required to produce a document 
or tangible thing unless it is within the person's possession, custody or 
control. Possession, custody, or control includes constructive possession such 
that the person need not have actual physical possession. As long as the person 
has a superior right to compel the production from a third party (including an 
agency, authority, or representative), the person has possession, custody or 
control.
(3)  Potential parties and witnesses. A party may obtain discovery of the 
identity and location (name, address, and telephone number) of any potential 
party and of persons having knowledge of relevant facts. A person has knowledge 
of relevant facts when he or she has or may have knowledge of any discoverable 
matter. The information need not be admissible in order to satisfy the 
requirement of this subsection and personal knowledge is not required.
(4)  Experts and reports of experts. Discovery of the facts known, mental 
impressions, and opinions of experts, otherwise discoverable because the 
information is relevant to the subject matter in the pending proceeding but 
which were acquired or developed in anticipation of hearing and the discovery of 
the identity of experts from whom the information may be obtained only as 
follows.
(A) In general. A party may obtain discovery of the identity and location (name, 
address, and telephone number) of an expert who may be called as an expert 
witness, the subject matter of which the witness is expected to testify, the 
mental impressions and opinions held by the expert, and the facts known to the 
expert (regardless of when the factual information was acquired) which relate to 
or form the basis of the mental impressions and opinions held by the expert. The 
disclosure of the same information concerning an expert used for consultation 
and who is not expected to be called as an expert witness at hearing is required 
if the consulting expert's opinions or impressions have been reviewed by a 
testifying expert.
(B) Reports. A party may also obtain discovery of documents and tangible things 
including all tangible reports, physical models, compilations of data, and other 
materials prepared by an expert or for an expert in anticipation of the expert's 
hearing and deposition testimony. The disclosure of material prepared by an 
expert used for consultation is required even if it was prepared in anticipation 
of the hearing if the consulting expert's opinions or impressions have been 
reviewed by a testifying expert.
(C) Reduction of report to tangible form. If the discoverable factual 
observations, tests, supporting data, calculations, photographs, or opinions of 
an expert who will be called as an expert witness have not been recorded and 
reduced to tangible form, the hearings officer may order these matter reduced to 
tangle form and produced within a reasonable time.
(5) Statements. Any person, whether or not a party, shall be entitled to obtain, 
upon written request, his own statement previously made concerning the matter 
which is the subject of the hearing, or its subject matter, which is in the 
possession, custody or control of any party. If the request is refused, the 
person may move for a hearings officer's order under the Administrative 
Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a, 
sec.14a. For purposes of this paragraph, a statement previously made is:
(A) a written statement signed or otherwise adopted or approved by the person 
making it; or
(B) a stenographic, mechanical, electrical, or other type of recording, or any 
transcription thereof, which is a substantially verbatim recital of a statement 
made by the person and contemporaneously recorded.
(c) Exemptions. The following matters are protected from disclosure by 
privilege.
(1) Work product. The work product of an attorney, subject to the exceptions of 
Texas Rules of Civil Evidence, 503(d), which shall govern as to work product as 
well as to attorney-client privilege.
(2) Experts. The identity, mental impressions and opinions of an expert who has 
been informally consulted or of any expert who has been retained or specially 
employed by another party in anticipation of, or preparation for, hearing or any 
documents or tangible things containing such information if the expert will not 
be called as an expert witness, except that the identity, mental impressions, 
and opinions of an expert who will not be called to testify as an expert and any 
documents or tangible things containing such impressions and opinions are 
discoverable if the consulting expert's opinions or impressions have been 
reviewed by a testifying expert.
(3) Written statement. The written statements of potential witnesses and 
parties, when made in connection with, or in anticipation of the prosecution, 
investigation, defense, or protest that is the subject of the proceeding, except 
that persons, whether parties or not, shall be entitled to obtain, upon request, 
copies of statements they have previously made concerning the subject of the 
proceeding and which are in the possession, custody, or control of any party. 
The term "written statements includes:
(A) a written statement signed or otherwise adopted or approved by the person 
making it; and
(B) a stenographic, mechanical, electrical, or other type of record, or any 
transcription thereof which is a substantially verbatim recital of a statement 
made by the person and contemporaneously recorded. For purpose of this 
paragraph, a photograph is not a statement.
(4) Party communications. Communications between agents or representatives or 
the employees of a party to the proceeding or communications between a party and 
that party's agents, representatives, or employees, when made in connection with 
the prosecution, investigation, defense, or protest of the particular 
proceeding, or in anticipation of the prosecution, protest, or defense of any 
claims made as part of the proceeding. This exemption does not include 
communications prepared by or for experts that are otherwise discoverable. For 
the purpose of this paragraph, a photograph is not a communication.
(5) Other privileged information; any matter protected from disclosure by any 
other privilege. Upon a showing that the party seeking discovery has substantial 
need of the materials and that the party is unable without undue hardship to 
obtain the substantial equivalent of the materials by other means, a party may 
obtain discovery of the materials otherwise exempt from discovery by paragraphs 
(3) and (4) of this subsection. Nothing in this subsection shall be construed to 
render non-discoverable the identity and location of any potential party, any 
person having knowledge of relevant facts, any expert who is expected to be 
called as a witness during hearing, or of any consulting expert whose opinions 
or impressions have been reviewed by a testifying expert.
(d) Presentation of objections. Either an objection or a motion for protective 
order made by a party to discovery shall preserve that objection without further 
support or action by the party unless the objection or motion is set for special 
hearing and a determination is made by the hearings officer. At any reasonable 
time, any party may request a special hearing on any objection or motion for 
protective order. The failure of a party to obtain a ruling prior to the hearing 
on any objection to discovery or motion for protective order does not waive such 
objection or motion. In objecting to an appropriate request within the scope of 
subsection (b) of this section, a party seeking to exclude any matter from 
discovery on the basis of an exemption, privilege, or immunity from discovery, 
must specifically plead the particular exemption, privilege, or immunity from 
discovery relied upon at or prior to any special hearing, shall produce any 
evidence necessary to support such claim either in the form of affidavits filed 
and served at least seven days before the special hearing or by testimony. If 
the hearings officer determines that an in camera inspection and review by the 
hearings officer of some or all of the requested discovery is necessary, the 
objecting party must segregate and produce the discovery to the hearings officer 
in a sealed wrapper or by answers made in camera to deposition questions, to be 
transcribed and sealed in event the objection is sustained. When a party seeks 
to exclude documents from discovery and the basis for objection is undue burden, 
unnecessary expense, harassment, annoyance, or invasion of personal, 
constitutional, or property rights rather than a specific immunity or exemption, 
it is not necessary for the hearings officer to conduct an inspection and review 
of the particular discovery before ruling on the objection. After the date on 
which answers are to be served, objections are waived unless an extension of 
time has been obtained by written agreement or order of the hearings officer or 
good cause is shown for the failure to object within such period.
(e) Protective orders. On motion specifying the grounds and made by any person 
against or from whom discovery is sought under these rules, the hearings officer 
may make any order in the interest of justice necessary to protect the movant 
from undue burden, unnecessary expense, harassment, annoyance, or invasion of 
personal, constitutional, or property rights. Specifically, the hearings 
officer's authority as to such order extends to, but is not limited by, any of 
the following:
(1) ordering that requested discovery not be sought in whole or in part, or that 
the extent or subject matter of discovery be limited, or that discovery not be 
undertaken at the time or place specified;
(2) ordering that the discovery be undertaken only by such method or upon such 
terms and conditions or at the time and place directed by the hearings officer.
(f) Duty to supplement. A party who has responded to a request for discovery 
that was correct and complete when made is under no duty to supplement his 
response to include information thereafter acquired, except the following shall 
be supplemented not less than 30 days prior to hearing unless the hearings 
officer finds that good cause exists for permitting or requiring later 
supplementation.
(1) A party is under a duty reasonably to supplement his response if he obtains 
information upon the basis of which:
(A) he knows that the response was incomplete and incorrect when made;
(B) he knows that the response, though correct and complete when made, is no 
longer true and complete and the circumstances are such that failure to amend 
the answer is in substance misleading.
(2)  If the party expects to call an expert witness when the identity or the 
subject matter of such expert's testimony has not been previously disclosed in 
response to an appropriate inquiry directly addressed to these matters, such 
response must be supplemented to include the name, address, and telephone number 
of the expert witness, and the substance of the testimony concerning which the 
expert witness is expected to testify, as soon as is practical, but in no event 
less than 30 days prior to hearing except on leave of the hearings officer.
(3) In addition, a duty to supplement any and all responses may be imposed by 
order of the hearings officer or by written agreement of the parties, or at any 
time prior to hearing, through new requests for supplementation of prior 
answers.
(g) Discovery motions. All discovery motions shall contain a certificate by the 
party filing same that efforts to resolve the discovery dispute without the 
necessity of hearings officer intervention have been attempted and failed.
sec.519.35. Stipulations Regarding Discovery Procedure. Unless the hearings 
officer orders otherwise, the parties may, by written agreement:
(1) provide that deposition be taken before any person, at any time or place, 
upon any notice, and in any manner and when so taken may be used like other 
depositions; and
(2) modify the procedures provided by these rules for other methods of 
discovery. An agreement affecting a deposition upon oral examination is 
enforceable if the agreement is recorded in the deposition transcript.
sec.519.36. Discovery and Production of Documents and Things for Inspection, 
Copying, or Testing.
(a) Procedure. Any party may serve upon any other party a request to accomplish 
any of the following.
(1)  To produce and permit the party making the request or someone acting on his 
behalf, to inspect, sample, test, photograph, and/or copy, any designated 
documents or tangible things which constitute or contain matter within the scope 
of these rules which are in the possession, custody or control of the party upon 
whom the request is served.
(2) The request shall set forth the items to be inspected either by individual 
item or by category with reasonable particularity. The request shall specify a 
reasonable time, place, and manner for making the inspection and performing the 
related acts.
(3) The party upon whom the request shall serve a written response which shall 
state, with respect to each item or category of items, that inspection or other 
requested action will be permitted as requested, and he shall thereafter comply 
with the request, except only to the extent that he makes objections in writing 
to particular items, categories, or items, stating specific reasons why such 
discovery should not be allowed.
(4) Upon request of the hearings officer, a true copy of the request and 
response, together with proof of the service thereof on all parties shall be 
filed promptly with the hearings officer by the party making it, except that any 
documents produced in response to a request need not be filed.
(5) A party who produces documents for inspection shall produce them as they are 
kept in the usual course of business, or shall organize and label them to 
correspond with the categories in the request.
(6) Testing or examination shall not extend to destruction or material 
alteration of an article without notice, hearing, and prior approval by the 
hearings officer.
(b) Time. All requests shall be provided to every party to the hearing. The 
party upon whom the request is served shall serve a written response and 
objections, if any, within 21 days after the service of the request. The time 
for making a response may be shortened or lengthened by the hearings officer.
(c) Order. If objection is made to a request or to a response, either party may 
file a motion with the hearings officer and seek relief pursuant to these rules.
sec.519.37. Interrogatories to Parties.
(a) Any party may serve upon any other party written interrogatories to be 
answered by the party served, or if the party served is a public or private 
corporation or a partnership or association, or governmental agency, by an 
officer or agent who shall furnish such information as is available to the 
party. Upon request of the hearings officer, a true copy of the interrogatories 
and the written answers or objections, together with proof of service, shall be 
filed promptly with the hearings officer by the party making them, except that 
when an interrogatory is answered by reference as permitted in paragraph (2) of 
this subsection, the records so referenced need not be filed.
(1) Service. When a party is represented by an attorney, service of 
interrogatories shall be made on the attorney unless service upon the party 
himself is ordered by the hearings officer.
(2) Scope. Interrogatories may relate to any matters which can be inquired into 
under these sections, but the answers, subject to any objections as to 
admissibility, may be used only against the party answering the interrogatories.
(3) Public and business records. Where the answer to an interrogatory may be 
derived or ascertained from public records or the business records of the party 
upon whom the interrogatory has been served or from an examination, audit, or 
inspection of such business records, or from a compilation, abstract, or summary 
based thereon, and the burden of deriving or ascertaining the answer is 
substantially the same for the party serving the interrogatory as for the party 
served, it is a sufficient answer to such interrogatory to specify the records 
from which the answer may be derived or ascertained and, if applicable, to 
afford the party serving the interrogatory reasonable opportunity to examine, 
audit or inspect such records and to make copies, compilations, abstracts, or 
summaries. The specification of records provided shall include sufficient detail 
to permit the interrogating party to locate and identify as readily as can the 
party served, the records from which the answers may be ascertained.
(b) Interrogatories may be served after a deposition has been taken, and a 
deposition may be sought after interrogatories have been answered but the 
hearings officer, on motion of the deponent or the party interrogated, may make 
such protective order as justice requires.
(c) Unless other time limits are set by the hearings officer or by written 
agreement of the parties, the party upon whom the interrogatories have been 
served shall serve answers upon the party submitting the interrogatories within 
21 days after the service of the interrogatories. The hearings officer may 
enlarge or shorten the time for serving answers or objections.
(d) The number of questions, including subsections, in a set of interrogatories 
shall be limited so as not to require more than answers per set if the hearings 
officer allows two sets of interrogatories, or 50 answers if the hearings 
officer allows only one set of interrogatories. Each part of a compound question 
will be considered a separate question. No more than two sets of interrogatories 
may be served by a party to any other party, except by written agreement or as 
may be permitted by the hearings officer after a special hearing upon a showing 
of good cause. The hearings officer may, after special hearing, reduce or 
enlarge the number of interrogatories or sets of interrogatories if justice so 
requires.
(e) The interrogatories shall be answered separately and fully in writing under 
oath. Answers to interrogatories shall be preceded by the question or 
interrogatory to which the answer pertains. True copies of the interrogatories, 
and answers and objections thereto, shall be provided to all parties or their 
attorneys. The answers shall be signed and verified by the person making them.
(f) A party may serve written objections to specific interrogatories or portions 
thereof. Objections must be served within seven days of receiving the 
interrogatories. Answers only to those interrogatories, or portions thereof, to 
which objection is made, shall be deferred until the objections are ruled upon 
and for such additional time thereafter as the examiner may direct. Any party 
may request a special hearing as to such objections at the earliest possible 
time.
sec.519.38. Requests for Admissions.
(a) Request for admission.
(1) A party may serve upon any other party a written request for the admission, 
for purposes of the pending proceeding only, of the truth of any matters within 
the scope of these rules. The request may relate to statements or opinions of 
fact or of the application of law to fact, including the genuineness of any 
documents described in the request. Except by written agreement of the parties 
or upon leave of the hearings officer, a party may serve only one set of 
admissions upon any other party.
(2) Copies of documents which are the subject of the request for admission shall 
be served with the request unless the documents have been or are otherwise 
furnished or made available for inspection or copying. Whenever a party is 
represented by an attorney of record, service for a request for admission shall 
be made on his attorney unless service on the party himself is ordered by the 
hearings officer. Upon request of the hearings officer, a true copy of a request 
for admission or of a written answer or objection, together with proof of the 
service thereof, shall be promptly filed with the hearings officer by the party 
making it.
(3) Each matter of which an admission is requested shall be separately set 
forth. The hearings officer may specify the dates by which the admission may be 
served, answered, specifically denied, or objected to as provided in these 
rules. The matter is admitted without necessity of a hearings officer's order 
unless, within 14 days after service of the request, or within such time as the 
hearings officer may allow, or as otherwise agreed by the parties, the party to 
whom the request is directed serves upon the party requesting the admission a 
written answer or objection addressed to the matter, signed by the party or his 
attorney.
(4)  If objection to a requested admission is made, the reason therefore shall 
be stated.
(5) The answer to a requested admission shall specifically deny the matter or 
set forth in detail the reason that the answering party cannot truthfully admit 
or deny the matter. A denial shall fairly meet the substance of the requested 
admission, and when good faith requires that a party qualify his answer or deny 
only a part of the matter of which an admission is requested, he shall specify 
so much of it as is true and qualify or deny the remainder.
(6) An answering party may not give lack of information or knowledge as a reason 
for failure to admit or deny unless he states that he has made reasonable 
inquiry and that the information known or easily obtainable by him is 
insufficient to enable him to admit or deny.
(7) A party who considers that a matter of which an admission is requested 
presents a genuine issue for trial may not, on that ground alone, object to the 
request. He may deny the matter or set forth reasons why he cannot admit or deny 
it.
(b) Effect of admissions.
(1) Any matter admitted under this section is conclusively established as to the 
party making the admission unless the hearings officer, on motion and for good 
cause shown, permits withdrawal or amendment of the admission.
(2) The hearings officer may permit withdrawal or amendment of responses and 
deemed admissions upon a showing of good cause for such withdrawal or amendment 
if the hearings officer finds that the parties relying upon the responses and 
deemed admissions will not be unduly prejudiced and that the presentation of the 
merits of the proceedings will not be subserved thereby.
sec.519.39. Subpoena of Witnesses and for the Production of Documentary 
Evidence.
(a) On his own motion or on the written request of any party to a hearing 
pending before him, on a showing of good cause, and on deposit of sums as 
required by the Administrative Procedure and Texas Register Act, Texas Civil 
Statutes, Article 6252-13a, sec.14, the hearings officer shall issue a subpoena 
addressed to any sheriff or constable of the State of Texas or other person 
authorized to serve subpoenas in the Texas Rules of Civil Procedure, Rule 178, 
to require the attendance of witnesses and the production of books, records, 
papers, or other objects as may be necessary and proper for the purposes of the 
proceedings.
(b) If a subpoena also commands the person to whom it is directed to produce 
books, papers, documents, or tangible things designated therein, the hearings 
officer, on motion made seasonably and in any event at or before the time 
specified in the subpoena for compliance therewith, may:
(1) quash or modify the subpoena if it is unreasonable and oppressive; or
(2) condition denial of the motion to quash or modify upon the advancement by 
the person on whose behalf the subpoena is issued, of the reasonable costs of 
producing the books, papers, documents, or tangible things.
sec.519.40. Form of Subpoena. The style of the subpoena shall be "The Texas 
State Board of Public Accountancy." It shall state the style of the hearing, 
that the hearing is pending before the Texas State Board of Public Accountancy, 
the time and place at which the witness is required to appear and the party at 
whose insistence the witness is summoned. It shall be signed by the hearings 
officer, but need not be under the seal of the board, and the date of its 
issuance shall be noted thereon. It may be made returnable forthwith, or on any 
date for which hearing of the proceeding may be set. It shall be addressed to 
any sheriff or constable of the State of Texas or other person authorized to 
serve subpoenas as provided in the Texas Rules of Civil Procedure, Rule 178.
sec.519.41. Witness Shall Attend Hearing. Every witness summoned in any hearing 
shall attend the hearing from day to day, and from place to place, until 
discharged by the hearings officer or party summoning such witness. If any 
witness, after being duly summoned, shall fail to attend, such witness may be 
subject to any sanctions or remedies available through district court to the 
party summoning the witness.
sec.519.42. Evidence.
(a) In contested cases, irrelevant, immaterial, or unduly repetitious evidence 
will be excluded.
(b)  Whenever necessary to ascertain facts not reasonably susceptible of proof 
under the Texas Rules of Civil Evidence, evidence not admissible thereunder may 
be admitted, except where precluded by statute, if it is of a type commonly 
relied upon by reasonably prudent men in the conduct of their affairs.
sec.519.43. Issuance of Commission to Take Deposition.
(a) On his own motion or on the written request of any party to a contested case 
pending before him, and on deposit of sums as required by the Administrative 
Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a, 
sec.4(d) , a hearings officer shall issue a commission, addressed to several 
officers authorized by statute to take depositions, to require that the 
deposition of a witness be taken, which commission shall authorize the issuance 
of any subpoenas necessary to require that the witness appear and produce, at 
the time the deposition is taken, books, records, papers, or other objects as 
may be necessary and proper for the purposes of the proceeding.
(b) The place of taking the deposition shall be in the county of the witness' 
residence, or where the witness is employed or regularly transacts business in 
person. The commission shall authorize and require the officer or officers to 
whom it is addressed, or either of them, to examine the witness before him on 
the date and at the place named in the commission and to take answers under oath 
to questions which may be propounded to the witness by the parties to the 
proceeding, or the attorneys for the parties. The commission shall require the 
witness to remain in attendance from day to day until the deposition is begun 
and completed.
sec.519.44. Witness Shall Comply with Subpoena.  In the case of failure of a 
person to comply with a subpoena or commission to take deposition issued 
pursuant to these rules, the party requesting the subpoena or commission to take 
deposition may bring suit to enforce the subpoena or commission to take 
deposition in a district court, either in Travis County or in the county in 
which the subject hearing may be held.
sec.519.45. Submission to Witness; Changes; Signing.
(a) When the testimony is fully transcribed, the deposition officer shall 
transmit or provide the original deposition transcript to the witness or if the 
witness is a party with an attorney of record, to the attorney of record, for 
examination and signature by the witness before any officer authorized to 
administer an oath, unless such examination and signature are waived by the 
witness and by the parties.
(b) No erasures or obliterations of any kind are to be made to the original 
testimony as transcribed by the deposition officer. Any changes in form or 
substance which the witness desires to make shall be furnished to the deposition 
officer by the witness, together with a statement of the reasons given by the 
witness for making such changes. The changes and the statement of the reasons 
for the changes shall be attached to the deposition by the depositions officer. 
The deposition transcript and any changes shall then be subscribed by the 
witness under oath, before any officer authorized to administer an oath, unless 
the parties by stipulation waive the signing or the witness is ill or cannot be 
found or refuses to sign.
(c) If the witness does not sign and return the original deposition transcript 
within 20 days of its submission to him or his attorney of record, the 
deposition officer shall sign a true copy of the transcript and state on the 
record the fact of the waiver of examination and signature or of the illness or 
absence of the witness or the fact of the refusal to sign together with the 
reason, if any, given therefore. The copy of the deposition transcript may then 
be used as fully as though signed.
sec.519.46. Use of Deposition Transcripts in Board Proceedings.
(a)  Use of deposition transcript in same proceeding.
(1) Use of depositions. At hearing, any part or all of a deposition taken in the 
same proceeding, insofar as admissible under the Texas Rules of Civil Evidence 
or these rules, may be used by any person for any purpose against any party who 
was present or represented at the taking of the deposition or who had reasonable 
notice thereof. Further, the Texas Rules of Civil Evidence shall be applied to 
each question and answer as though the witness were then present and testifying. 
Depositions shall include the original transcripts or any certified copies 
thereof. Unavailability of the deponent is not a requirement of admissibility.
(2) Parties joined after deposition taken. If one becomes a party after a 
deposition is taken and has an interest similar to that of any party described 
in paragraph (1) of this subsection, the deposition is admissible against him 
only if he has had a reasonable opportunity, after becoming a party, to redepose 
the deponents, and has failed to exercise that opportunity.
(b) Use of deposition transcript taken in different proceeding. At trial or upon 
the hearing of a motion or an interlocutory proceeding before a hearings 
officer, any part or all of a deposition taken in a different proceeding may be 
used subject to the provisions and requirements of the Texas Rules of Civil 
Evidence or these rules. Further the Texas Rules of Evidence shall be applied to 
each question and answer as though the witness was then present and testifying.
(c) Motion to suppress. When a deposition transcript has been delivered by the 
deposition officer and notice of delivery given at least one entire day before 
the day on which the case is called for hearing, error and irregularities in the 
notice of delivery, and errors in the manner in which the testimony is 
transcribed or the deposition transcript is prepared, signed, certified, sealed, 
endorsed, delivered, or otherwise handled by the deposition officer are waived, 
unless a motion to suppress the deposition transcript or some part thereof is 
made and notice of the written objections made in the motion is given to every 
other party before hearing commences.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 16, 1992.
TRD-9201191
William Treacy
Executive Director
Texas State Board of Public Accountancy
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 450-7066
       
TITLE 25. HEALTH SERVICES
Part I. Texas Department of Health
Chapter 151. Nurse Aides
The Texas Department of Health (department) proposes an amendment to existing 
sec.151.2, the repeal of existing sec.sec.151. 3-151.12, and new sec.151.3-
151.12, concerning nurse aides. Section 151.2 covers definitions and new 
sec.sec.151.3-151.12 cover facility requirements, nurse aide training and 
competency evaluation program requirements, competency evaluation program 
requirements, program director and skills examiner requirements, processing and 
approval of applications, waiver and reciprocity requirements, and registry 
requirements. Existing sec.151.3-151.12 (which are proposed for repeal) cover 
placement on the registry; registry findings and inquiries; training and 
competency evaluation programs requirements; approval of program coordinator, 
primary instructor, and skills examiner; instructional certification programs; 
and processing and approval of applications. The amendment, new sections, and 
repeal of existing sections of the rules are necessary to implement the recent 
requirements established in the Omnibus Budget Reconciliation Act of 1987 (Act), 
and the regulations adopted under the Act.
Stephen L. Seale, Chief Accountant III, has determined that for the first five-
year period the sections are in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the 
sections.
Mr. Seale also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be to improve the care of residents in facilities. The 
proposed sections will clarify the requirements for nurse aide training, 
competency testing, and placement on the registry; thus promoting compliance 
with the requirements. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
sections as proposed. There will be no effect on local employment.
Comments on the proposal may be submitted to Gerald W. Guthrie, Director, 
Professional Licensing and Certification Division, Texas Department of Health, 
1100 West 49th Street, Austin, Texas 78756-3183, (512) 834-6628. Comments will 
be received for 30 days from the date of publication of the proposed rules in 
the Texas Register.
25 TAC sec.151.2
The amendment is proposed under the Act, Public Law 100-203, sec.sec.4201-4214, 
as amended, which requires the Board of Health through an agreement with the 
Texas Department of Human Services to adopt rules implementing a nurse aide 
registry and training and competency evaluation program for nurse aides; and 
Health and Safety Code, sec.12.001, which provides the Texas Board of Health 
with the authority to adopt rules for the performance of every duty imposed by 
law on the Texas Board of Health, Texas Department of Health, and the 
commissioner of health.
sec.151.2. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise.
 Act-The Omnibus Budget Reconciliation Act of 1987 <nl>(Act)<ol>, Public Law 
100-203, sec.sec.4201-4214, December 22, 1987 (amending the Social Security Act, 
sec.1819 and sec.1919), as amended <nl>and the federal regulations promulgated 
under the Act in Title 42, Code of Federal Regulations, Part 483<ol>.
 [Board-The Texas Board of Health.]
   <nl>Competency evaluation program (CEP)-A skills examination and a written or 
oral examination approved by the department.
   <nl>Curriculum-The Texas curriculum for nurse aides in long term care 
facilities established by the department.
<nl>   Direct supervision -Actual observation of students performing tasks in a 
nurse aide training and competency evaluation program (NATCEP).
 Examination-A competency evaluation <nl>program or the competency evaluation 
portion of a training and competency evaluation program<ol> [which includes 
manual (clinical) skills and written or oral evaluations].
   <nl>General supervision -The provision of necessary guidance and maintenance 
of ultimate responsibility for the program.
 [Instructional certification program-A program of instruction in teaching adult 
learners approved by the department under sec.151. 10 of this title (relating to 
Instructional Certification Program Application and Approval).]
 Licensed health professional-A physician; physician assistant; <nl>nurse 
practitioner; <ol> physical, speech, or occupational therapist; physical or 
occupational therapy assistant; registered professional nurse; licensed 
vocational nurse; or certified social worker.
 Non-facility-based program -A <nl>nurse aide<ol> training and competency 
evaluation program not offered by or in a facility.
 Nurse aide-An individual providing nursing or nursing-related services to 
residents in a facility under the supervision of a licensed nurse. This 
definition does not include an individual who is a licensed health professional 
who volunteers such services without monetary compensation[, or who is exempt 
under sec.151.3(a) of this title (relating to Requirements for Placement on 
Registry).] A nurse aide is not authorized to provide nursing and/or nursing-
related services for which a license, certification, or registration is required 
under state or federal law.
   <nl>Nurse aide training and competency evaluation program (NATCEP)-A program 
approved by the department to train and evaluate individuals to act as nurse 
aides.
 [Primary Instructor (PI)-An individual approved by the department as described 
in sec.151.9 of this title (relating to Approval of Program Coordinator, Primary 
Instructor, and Skills Examiner).]
 Program-A  <nl>nurse aide<ol> training and competency evaluation program.
 [Program coordinator (PC)-An individual approved by the department as described 
in sec.151.9 of this title (relating to Approval of Program Coordinator, Primary 
Instructor, and Skills Examiner).]
   <nl>Program director -An individual approved by the department as described 
in sec.151.6 of this title (relating to Program Director and Skills Examiner 
Requirements).
 Registry-A listing of all individuals who have satisfactorily completed a 
<nl>nurse aide<ol> training and competency evaluation program or a competency 
evaluation program approved by the department <nl>or qualified by waiver or 
reciprocity <ol>.
 Skills examiner -An individual approved by the department in accordance with 
<nl>sec.151.6<ol> [sec.151.9] of this title (relating to <nl>Program Director 
and Skills Examiner Requirements<ol> [Approval of Program Coordinator, Primary 
Instructor, and Skills Examiner]).
   <nl>Supplemental trainers -Qualified personnel who may participate in 
teaching a program in accordance with sec.151.6 of this title (relating to 
Program Director and Skills Examiner Requirements).
 [Trainer-Qualified personnel who may participate in teaching a program in 
accordance with sec.151.9 of this title (relating to Approval of Program 
Coordinator, Primary Instructor, and Skills Examiner).]
 [Training and Competency Evaluation Program-A program approved by the 
department to instruct and evaluate individuals to act as nurse aides.]
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 27, 1992.
TRD-9201187
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Proposed date of adoption: March 15, 1992
For further information, please call: (512) 834-6628
       
25 TAC sec.sec.151.3-151.12
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Health or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Omnibus Budget Reconciliation Act of 1987, 
Public Law 100-203, sec.sec.4201-4214, as amended, which requires the Board of 
Health through an agreement with the Texas Department of Human Services to adopt 
rules implementing a nurse aide registry and training and competency evaluation 
program for nurse aides; and Health and Safety Code, sec.12.001 which provides 
the Texas Board of Health with the authority to adopt rules for the performance 
of every duty imposed by law on the Texas Board of Health, Texas Department of 
Health and the commissioner of health.
sec.151.3. Requirements for Placement on Registry.
sec.151.4. Requirements for Retraining.
sec.151.5. Registry; Findings; Inquiries.
sec.151.6. Training and Competency Evaluation Program Application and Approval.
sec.151.7. Training and Competency Evaluation Requirements.
sec.151.8. Reapproval of Training and Competency Evaluation Programs.
sec.151.9. Approval of Program Coordinator, Primary Instructor, and Skills 
Examiner.
sec.151.10. Instructional Certification Program Application and Approval.
sec.151.11. Processing Approval Requests.
sec.151.12. Withdrawal of Approval of Program, Instructional Certification 
Program, Program Coordinator, Primary Instructor, or Skills Examiner.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 27, 1992.
TRD-9201188
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Proposed date of adoption: March 15, 1992
For further information, please call: (512) 834-6628
       
The new sections are proposed under the Omnibus Budget Reconciliation Act of 
1987, Public Law 100-203, sec.sec.4201-4214, as amended, which requires the 
Board of Health through an agreement with the Texas Department of Human Services 
to adopt rules implementing a nurse aide registry and training and competency 
evaluation program for nurse aides; and Health and Safety Code, sec.12.001 which 
provides the Texas Board of Health with the authority to adopt rules for the 
performance of every duty imposed by law on the Texas Board of Health, Texas 
Department of Health and the commissioner of health.
sec.151.3. Facility Requirements.
(a) A facility must not use on a full-time basis any individual as a nurse aide 
in the facility for more than four months unless the individual:
(1) is competent to provide nursing or nursing-related services; and
(2) has met the following:
(A) successfully completed a Nurse Aide Training and Competency Evaluation 
Program (NATCEP) or a Consultation Evaluation Program (CEP); or
(B) been deemed or determined competent as provided in sec.151.10 of this title 
(relating to Waiver and Reciprocity Requirements).
(b) A facility must not use on a temporary, per diem, leased, or any basis other 
than as a permanent employee any individual as a nurse aide in the facility 
unless the individual meets the requirements in subsection (a) of this section.
(c)  A facility must not use an individual who has worked less than four months 
as a nurse aide in the facility unless the individual:
(1) is a full-time employee and is in a NATCEP;
(2) has successfully completed a NATCEP or CEP; or
(3) has been deemed or determined competent as provided in sec.151.10 of this 
title (relating to Waiver and Reciprocity Requirements).
(d) Private duty aides and sitters hired by residents or their families do not 
have to meet the requirements of this chapter or the Act. Facilities are 
encouraged to develop their own policies regarding private duty aides and 
sitters.
(e) Before allowing an individual to serve as a nurse aide, a facility must 
request and receive verification that the individual is on the registry unless 
the individual:
(1) is a full-time employee and is in a NATCEP; or
(2) can prove that he or she has recently successfully completed a NATCEP or a 
CEP and has not yet been included in the registry. Facilities must follow up to 
ensure such an individual actually is placed on the registry.
(f) Before allowing an individual to serve as a nurse aide, a facility must seek 
information from each state registry established under the Omnibus 
Reconciliation Act (Act) of 1987, which the facility believes will include 
information on the individual.
(g) A facility must not employ individuals who have had a finding entered into 
the registry concerning abuse, neglect, mistreatment of a resident, or 
misappropriation of a resident's property.
sec.151.4. Nurse Aide Training and Competency Evaluation Program (NATCEP) 
Requirements.
(a) To train individuals who are not on the registry, a facility may offer a 
NATCEP or contract with another NATCEP.
(b) A person or entity which desires to offer a NATCEP shall file an application 
for approval on official forms prescribed by the Texas Department of Health 
(department) which shall include but not be limited to:
(1) the name, phone number, location, and mailing address of the school or 
facility;
(2)  the category of the NATCEP designated as a facility-based NATCEP or a non-
facility-based NATCEP;
(3) the type of NATCEP designated as open or closed to public enrollment;
(4) the name of the NATCEP director;
(5) the total number of classroom and clinical hours and a schedule of the daily 
hours of the initial classroom and clinical NATCEP;
(6) a list of facilities to be used for clinical training and letter(s) of 
agreement from the facilities signed by the chief executive officer or 
administrator of the facilities, if cooperative agreements are made between the 
NATCEP and the facility;
(7) the location of the classroom course and a description of the classroom and 
skills training room(s) including adequate space, cleanliness, safety, lighting, 
and temperature controls;
(8) a list of textbook(s), audio-visual materials and other equipment to be 
used;
(9) verification that the NATCEP shall follow the rules and the curriculum 
established by the department and shall agree to permit unannounced visits by 
the department or its designee; and
(10) additional information and supporting documentation requested by the 
department.
(c) If an entity or person desires to offer more than one NATCEP for which the 
required number of classroom hours or the location of the classroom course 
differs from NATCEP to NATCEP, the entity or person shall file a separate 
application for each of these separate NATCEPs.
(d) A NATCEP which exceeds both the curriculum content and hours required by the 
department must:
(1) teach the curriculum in one distinct and separate segment of the longer 
NATCEP; and
(2) submit a course outline which shows the placement of the curriculum in the 
total NATCEP and provides the total weeks and hours of the required curriculum 
and of the total NATCEP.
(e) A NATCEP offered by or in a facility shall not be approved by the department 
if:
(1) within the previous two years, the facility:
(A) has operated under a waiver under 42 United States Code (USC) sec.1395i-
3(b)(4)(C)(ii)(II) or sec.1396r(b)(4)(C)(ii) relating to the services of a 
registered nurse;
(B) has been subject to an extended (or partial extended) survey under 42 United 
States Code, sec.1395i-3(g) or sec.1396r(g);
(C) has been assessed a civil money penalty described in 42 United States Code, 
sec.1395i-3(h) or sec.1396r(h) of not less than $5,000; or
(D) has been subject to:
(i) denial of payment under 42 USC, sec.1395i-3(h) or sec.1396r(h);
(ii) appointment of temporary management under 42 USC, sec.1395i-3(h) or 
sec.1396r(h);
(iii)  termination of participation under 42 USC, sec.1395i-3(h)(4) or 
sec.1396r(h)(1)(B)(i); or
(iv) closure of the facility under 42 USC, sec.1396r(h)(2); or
(2) pursuant to state or federal law, the prohibition occurred within the period 
from October 1, 1988, to September 30, 1990, and it is within two years of the 
action or assessment, one of the following applies to the facility:
(A) the facility had its participation terminated under the Social Security Act, 
Title XVIII, or under the state plan under the Social Security Act, Title XIX;
(B) the facility was subject to a denial of payment under either title mentioned 
in subparagraph (A) of this paragraph;
(C) the facility was assessed a civil money penalty not less than $5,000 for 
deficiencies in facility standards;
(D) the facility operated under a temporary management appointed to oversee the 
operation of the facility and to ensure the health and safety of the facility's 
residents; or
(E)  pursuant to state action, the facility was closed or had its residents 
transferred.
(f) Each NATCEP must teach a minimum of 75 clock hours of training, including at 
least:
(1) 51 clock hours of classroom training defined as classroom and skills 
training which does not involve direct care of residents by trainees; and
(2) 24 clock hours of clinical training defined as hands on care of residents by 
trainees under the direct supervision of a licensed nurse.
(g) Each NATCEP must teach the curricula established by the department 
including:
(1) at least 16 introductory hours of training in the following areas prior to 
any direct contact with a resident:
(A) communication and interpersonal skills;
(B)  infection control;
(C) safety/emergency procedures including the Heimlich maneuver;
(D) promoting residents' independence; and
(E)  respecting residents' rights;
(2) personal care skills;
(3)  basic nursing skills;
(4) mental health and social service needs;
(5) care of cognitively impaired residents;
(6) basic restorative services; and
(7) residents' rights.
(h) A NATCEP must have an approved program director who meets the requirements 
of sec.151.6(a) of this title (relating to Program Director and Skills Examiner 
Requirements).
(i) A NATCEP must ensure that trainees:
(1) complete at least the first 16 hours of training (Section I of the 
curriculum) prior to any direct contact with a resident;
(2) perform only those services for which they have been trained and found to be 
proficient by an instructor;
(3) who are performing skills on individuals as part of a NATCEP are under the 
direct supervision of a licensed nurse; and
(4) who are providing services to a resident are under the general supervision 
of a licensed nurse.
(j) A NATCEP must notify the department of any substantive change in any 
information presented by a NATCEP in an approved application including but not 
limited to ownership, classroom location, clinical training site, program 
director, course content, or scheduled number of clock hours of the course. Such 
changes shall be approved by the department prior to the NATCEP's effective date 
of the change. If, due to special circumstances, a NATCEP cannot notify the 
department of a change prior to the effective date of the change, the department 
shall be notified immediately and shall approve the change if the change 
complies with the Act and this chapter.
(k) Each NATCEP shall use a performance record developed by the department of 
major duties/skills taught. The record shall consist of, at a minimum, a listing 
of the duties/skills expected to be learned in the NATCEP, space to record when 
the trainee performs this duty/skill, and spaces to note satisfactory or 
unsatisfactory performance, and the name of the instructor supervising the 
performance. At the completion of the NATCEP, the trainee and his/her employer 
(if applicable) will receive a copy of the record.
(l) The NATCEP shall maintain records which shall be available to the department 
or its designees at any reasonable time and which shall include for each new 
session of the NATCEP at least the:
(1) dates and times of all classroom and clinical hours;
(2) full name and social security number of each trainee;
(3) attendance record of each trainee; and
(4)  final course grade for the training portion of the NATCEP indicating pass 
or fail for each trainee.
(m) At the request of a trainee who has successfully completed the training 
portion of a NATCEP, the NATCEP shall issue a certificate of completion or a 
letter on letterhead stationery stating that the trainee has completed the 
NATCEP. The document shall include at least the date of completion of the 
NATCEP, the total hours of training, the official NATCEP name and number on file 
with the department, and the signature of the program director.
(n) Each NATCEP must meet the requirements of this chapter and include the 
competency evaluation program specified in  s151.5(b) and (d)-(o) of this title 
(relating to Competency Evaluation Program Requirements).
(o) A nurse aide who is employed by, or who has received an offer of employment 
from, a facility on the date on which the nurse aide begins a NATCEP may not be 
charged for any portion of the NATCEP (including any fees for textbooks or other 
required course materials).
(p) If an individual does not fall under subsection (o) of this section, but 
becomes employed as a nurse aide by, or receives an offer of employment as a 
nurse aide from a facility not later than 12 months after completing a NATCEP, 
the state must provide for the reimbursement of costs incurred in completing the 
NATCEP on a pro rata basis during the period in which the individual is employed 
as a nurse aide.
(q) Each trainee shall be clearly identified as a trainee during the clinical 
training.
(r) The ratio of instructors to trainees in skills and clinical training must 
ensure that each trainee is provided safe and effective assistance and 
supervision.
(s) Each NATCEP shall primarily provide educational and training opportunities 
for the trainee(s) rather than primarily provide nursing or nursing-related 
services to the facility, its residents or clients.
(t) The graduates' success rate on the examination will be monitored by the 
department and may be utilized as a criteria for withdrawing NATCEP approval.
(u) No NATCEP shall be operated and no trainee shall be solicited or enrolled 
until the department has approved the NATCEP.
(v) Approval of a NATCEP by the department is granted to cover only approval of 
the required curriculum and hours and should not be considered approval of 
additional content or hours.
(w) An orientation NATCEP required under federal or state law, other than the 
Act, given by a facility to a nurse aide employed in the facility shall be 
separate from and shall not constitute a part of a NATCEP.
sec.151.5. Competency Evaluation Program (CEP) Requirements.
(a)  All examinations shall be administered by the department or its designee to 
individuals who have successfully completed the training portion of a nurse aide 
training competency evaluation program (NATCEP) or are eligible to take a free-
standing CEP under subsection (c)(1) of this section.
(b)  Requirements for the competency evaluation portion of a NATCEP are as 
follows.
(1) A trainee is eligible to take the competency evaluation portion of a NATCEP 
if he or she has successfully completed the training portion of a NATCEP as 
determined by the program director.
(2) An eligible trainee shall take the examination as part of the same NATCEP. 
If it is not possible to test with the same NATCEP, a nurse aide may take the 
examination at another approved facility or NATCEP which has volunteered to 
serve as an examination site.
(3) A trainee who does not test with the same NATCEP must obtain from the 
program director an original certificate or letter described in sec.151.4(m) of 
this title (relating to NATCEP Requirements) to present to the skills examiner 
prior to taking the examination.
(c)  Requirements for the free-standing CEP are as follows.
(1) An individual is eligible to take a CEP if he or she completes the 
documentation required by the department and:
(A) falls under sec.151.12 of this title (relating to Requirements for 
Retraining);
(B) successfully completes the training portion of a NATCEP approved under the 
Act by or in another state;
(C) successfully completes military training of 100 hours or more on or after 
July 1, 1989, equivalent to civilian nurse aide training;
(D)  successfully completes a state accredited register nurse (RN) or licensed 
vocational nurse (LVN) program on or after July 1, 1989, and:
(i)  is not licensed as a RN or LVN; and
(ii) has not held a license as a RN or LVN which has been revoked;
(E) is currently enrolled in a state accredited school of nursing and has 
demonstrated competency in providing basic nursing skills in accordance with the 
school's curriculum; or
(F) successfully completes a home health aide training and competency evaluation 
program in accordance with federal law and approved by the state.
(2) An eligible individual shall take the CEP at an approved facility or NATCEP.
(3) An eligible individual shall receive an original letter of approval to take 
a CEP signed by the department. This letter must be presented to the skills 
examiner prior to the examination.
(d) The responsibilities of an approved facility or NATCEP serving as an 
examination site are to:
(1) provide the facility where the skills examination and the location where the 
written or oral examination will be given;
(2)  offer the examination to its own trainees promptly after successful 
completion of the training portion if a NATCEP;
(3) offer the examination to an eligible examinee who is employed by or has 
received an offer of employment from the facility if the individual desires to 
be examined at the facility;
(4) offer the examination to other eligible examinees whom the facility or 
NATCEP has voluntarily accepted for the examination;
(5)  schedule examinations and retests with the department's designee; and
(6) assure that applications for examination are completed accurately.
(e) The responsibilities of the examinee are to:
(1) take the examination:
(A) with the NATCEP where the examinee was trained;
(B) at an approved facility from which the individual has received an offer of 
employment or is employed; or
(C) at an approved facility or NATCEP which has volunteered to accept the 
examinee for examination;
(2)  verify the arrangements for examination with the examination site;
(3)  present the completed application for examination and documentation 
required under subsection (b)(3) or (c)(3) of this section to the skills 
examiner prior to the examination;
(4) request a retest if the examinee fails the examination; and
(5) meet other procedural requirements specified by the department or its 
designee.
(f) The responsibilities of the department or its designees are to:
(1) provide instructions and eligibility forms to applicants for a CEP and 
provide a letter of approval under subsection (c)(3) of this section;
(2) assist an eligible examinee to find an approved facility or NATCEP to serve 
as an examination site;
(3)  schedule examinations and retests for the requesting approved facility or 
NATCEP; and
(4) conduct and administer examinations and report results of examinations as 
required by the department.
(g) The examination shall consist of:
(1) the skills examination which includes a demonstration by the trainee of a 
minimum of five randomly selected skills drawn from a pool of skills which are 
generally performed by nurse aides and are listed on the performance record. 
This pool of skills includes all of the personal care skills listed in the 
curriculum; and
(2) the written or oral examination which includes 50 multiple choice questions 
selected from a pool of test items which address each course requirement in the 
curriculum. The written examination questions are printed in a test booklet with 
a separate answer sheet. The oral examination is a tape-recorded presentation 
read from a prepared text in a neutral manner which includes additional 
questions to test reading comprehension.
(h) At the nurse aide's option, the nurse aide may establish competency under 
this section by successful completion of:
(1) a skills examination or an examination for a handicapped or disabled 
individual equivalent to the skills examination; and
(2) a written examination in English, an oral examination in English or Spanish, 
or an examination for a handicapped or disabled individual equivalent to the 
written or oral examination.
(i) Successful completion of the examination consists of:
(1) achieving a passing grade on the skills examination as determined by the 
department; and
(2) achieving a passing grade on the written or oral examination as determined 
by the department.
(j) A person who fails the skills examination or the written or oral examination 
may retest twice on the failed examination.
(1) The person shall be advised of the areas which he or she did not pass.
(2) The person must request re-examination through the approved facility, NATCEP 
or the department's designee.
(3) The department is not required to set special re-examination schedules.
(4) After failing the examination three times, the individual must complete the 
training portion of a NATCEP prior to retesting.
(k) The state must advise in advance any individual who takes the examination 
that a record of the successful completion of the examination will be included 
in the nurse aide registry.
(l) A record of successful completion of the examination must be included on the 
registry within 30 days of the date the examination was passed.
(m) An examination shall not be offered by or in a facility if the facility 
falls within any of the provisions of sec.151.4(e) of this title (relating to 
NATCEP Requirements).
(n) A nurse aide who is employed by, or who has received an offer of employment 
from, a facility on the date on which the nurse aide begins a CEP may not be 
charged for any portion of the CEP.
(o) If an individual does not fall under subsection (n) of this section, but 
becomes employed as a nurse aide by, or receives an offer of employment as a 
nurse aide from a facility not later than 12 months after completing a CEP, the 
state must provide for the reimbursement of costs incurred in completing the CEP 
on a pro rata basis during the period in which the individual is employed as a 
nurse aide.
sec.151.6. Program Director and Skills Examiner Requirements.
(a)  Program director. The training of nurse aides must be performed by or under 
the general supervision of an approved program director. Each approved nurse 
aide training and competency evaluation program (NATCEP) must have an approved 
program director.
(1) The program director must:
(A) be licensed as a registered nurse in the State of Texas;
(B) have a minimum of two years of nursing experience, at least one year of 
which must be in the provision of long term care facility services; and
(C) have completed a course in teaching adults or have experience in teaching 
adults or supervising nurse aides.
(2) In a facility-based NATCEP, the director of nursing for the facility may be 
approved as the program director but is prohibited from performing the actual 
training.
(3) A program director may supervise more than one NATCEP.
(4) The responsibilities of the program director shall include but not be 
limited to:
(A) directing the NATCEP in compliance with the Act and this chapter;
(B) teaching the NATCEP and/or supervising supplemental trainers;
(C) assuring that NATCEP records are maintained;
(D) determining if trainees have met the NATCEP requirements;
(E) signing an application for examination for each trainee who has passed the 
NATCEP and has completed the department's application; and
(F) notifying the department of the date the program director ceases to be a 
program director for a specific NATCEP and the date the program director starts 
as a program director for another NATCEP.
(5) A program director shall complete an application for approval. An applicant 
who meets the requirements of this subsection shall be approved as a program 
director.
(b) Supplemental trainers. Other personnel from the health professions may 
supplement the instructor, including, but not limited to, registered nurses, 
licensed vocational nurses, pharmacists, dietitians, social workers, 
sanitarians, fire safety experts, nursing home administrators, gerontologists, 
psychologists, physical and occupational therapists, activities specialists, 
speech-language pathologists, audiologists, and resident rights experts.
(1) A supplemental trainer must have at least one year of experience in his or 
her field of instruction.
(2) A supplemental trainer may be listed on the NATCEP application but does not 
need approval from the department in order to instruct.
(3) Each supplemental trainer shall be selected and supervised by the program 
director.
(c) Skills examiner. The competency evaluation of a nurse aide must be conducted 
by an approved skills examiner.
(1) A skills examiner must:
(A) be licensed as a registered nurse in the State of Texas;
(B) have completed a minimum of one year of professional experience in providing 
care for the elderly or chronically ill of any age;
(C) have completed a skills training seminar conducted by the department or its 
designee; and
(D)  not be an employee of:
(i) the facility where an examination is given by the skills examiner;
(ii) the facility which gave the NATCEP to the person being examined by the 
skills examiner; or
(iii)  a facility with a contractual or corporate relationship to a facility 
described in clauses (i) or (ii) of this subparagraph.
(2) A skills examiner shall be responsible for:
(A) adhering to the department's standards for each skill examined;
(B) conducting the examination in an objective manner according to the criteria 
established by the department;
(C) validating the examination results on form(s) prescribed by the department; 
and
(D) submitting prescribed forms and reports to the department or its designee.
(3) A skills examiner shall complete an application for approval. An applicant 
who meets the requirements of this subsection shall be approved as a skills 
examiner.
sec.151.7. Filing and Processing Applications for Nurse Aide Training and 
Competency Evaluation Program (NATCEP), Program Director and Skills Examiner.
(a) An applicant must submit a request for approval on official forms prescribed 
by the Texas Department of Health (department) which:
(1)  are original documents signed by the applicant or authorized 
representative;
(2) are typed or printed in ink with all pages clearly legible; and
(3) are notarized as requested by the department.
(b) The department shall consider whether the applicant complies with the Act 
and this chapter.
(c) Incomplete or deficient applications may cause delays in the date of 
approval.
(1) A notice of deficiency in the application will be mailed to an applicant 
within 15 days of the date of filing.
(2)  The applicant will be given an opportunity to correct any deficiencies.
(d) Notice of approval or proposed disapproval of the application will be given 
to the applicant within 30 days of the receipt of a complete application. If the 
application is proposed to be disapproved due to noncompliance with the 
requirements of the Act or this chapter, the reason for disapproval shall be 
given in the notice.
(e) An applicant for approval of a NATCEP may request a hearing on a proposed 
disapproval in writing within 20 days of the date the notice is mailed or 
personally delivered to the applicant. The hearing shall be scheduled to 
commence within 30 days of the department's receipt of the applicant's request 
for a hearing and shall be in accordance with Chapter 1 of this title (relating 
to Board of Health) and the Administrative Procedure and the Texas Register Act, 
Texas Civil Statutes, Article 6252-13a.
(f) An applicant for approval as a program director or skills examiner may 
request a hearing on a proposed disapproval in writing within 20 days of the 
date the notice is mailed or personally delivered to the applicant.
(1)  A hearing shall be conducted by a hearing examiner in the same manner as 
set forth in sec.151.11(c)(1)-(10) of this title (relating to Registry; 
Findings; Inquiries).
(2) The hearing examiner shall prepare a written recommendation for decision 
based solely on the evidence presented at the hearing and the statutory and 
regulatory provisions of the Act and this chapter. The recommendation shall 
state the reason for the recommendation and include findings of fact and 
conclusions of law.
(A) The recommendation shall be provided to the department and the program 
director or skills examiner applicant who may file exceptions.
(B) The recommendation and any exceptions shall be submitted to the commissioner 
of health or his or her designee for final decision.
(C) The final decision shall be made as soon as possible after the close of the 
hearing.
(g) If no timely request for a hearing is made by an applicant, the applicant is 
deemed to have waived the opportunity for a hearing and the proposed action may 
be taken.
(h) If an applicant who has requested a hearing fails to appear or be 
represented at the scheduled hearing, the applicant is deemed to have waived the 
opportunity for a hearing and the proposed action may be taken.
sec.151.8. Approval, Reapproval and Inspection of a Nurse Aide Training and 
Competency Evaluation Program (NATCEP).
(a) Initial approval of a NATCEP shall be made on the basis of the application 
submitted to the Texas Department of Health (department).
(b) Approval of a NATCEP is granted for a period of two years.
(c) If substantive changes described in sec.151.4(j) of this title (relating to 
Nurse Aide Training Competency Evaluation Program Requirements) are made to a 
NATCEP within the two year period, the NATCEP must notify the department and the 
department must review the NATCEP. An on-site review by the department may be 
necessary.
(d) The department shall send a notice of renewal and a renewal application form 
to a NATCEP at least 60 days prior to the expiration date of the NATCEP 
approval.
(e)  A NATCEP must file the renewal application form before the expiration date 
of the NATCEP approval. A NATCEP which makes timely application for renewal may 
continue to train. A NATCEP which files the renewal application form after the 
expiration date may not train until the renewal application form is approved by 
the department.
(f) After receipt of the completed renewal application form, the department 
shall schedule and conduct an on-site review of the NATCEP to determine if the 
NATCEP is in compliance with the requirements of the Act and this chapter.
(g) The department may conduct an on-site review of a NATCEP at any reasonable 
time.
(h) The department shall present to a NATCEP a written report of the results of 
any on-site review summarizing any violations of or non-compliance with the Act 
or this chapter.
(1) The NATCEP must submit a written response to the department which includes a 
plan of action to correct all violations or noncompliance and the results of 
such action.
(2) The department may direct a NATCEP to comply with the requirements of the 
Act and this chapter.
(3) A NATCEP not meeting the requirements of the Act and this chapter may be 
subject to further on-site reviews or proposed disapproval or withdrawal of 
approval.
sec.151.9. Withdrawal of Approval of a Nurse Aide Training and Competency 
Evaluation Program (NATCEP), Program Director and Skills Examiner.
(a) Approval of any NATCEP, program director, or skills examiner may be 
withdrawn for any violation of or noncompliance with the Act or this chapter.
(b) The department shall withdraw approval of a NATCEP if the NATCEP refuses to 
permit unannounced visits by the state.
(c) The department shall withdraw approval of a NATCEP offered by or in a 
facility which falls within a prohibition in sec.151.4(e) of this title 
(relating to NATCEP Requirements).
(d) If the department proposes to withdraw approval of any NATCEP, program 
director, or skills examiner, the department shall notify the NATCEP, program 
director, or skills examiner by mail at the last known address as shown in the 
department's records or by personal delivery. The notice must state the facts or 
conduct alleged to warrant the action and state that the individual has an 
opportunity to request in writing a hearing.
(e) The NATCEP or individual notified may request a hearing within 20 days of 
the date the notice is mailed or personally delivered to the individual. This 
request shall be in writing and submitted to the Program Administrator, Nurse 
Aide Training and Registry Program at the department.
(f) A hearing for a NATCEP shall be scheduled to commence within 30 days from 
the department's receipt of the request for a hearing and shall be conducted 
pursuant to the Administrative Procedure and Texas Register Act, Texas Civil 
Statutes, Article 6252-13a, and Chapter 1 of this title (relating to Board of 
Health).
(g)  If a skills examiner or program director makes a timely request for a 
hearing, the hearing process and decision shall be as stated in sec.151.7(f) of 
this title (relating to Filing and Processing Applications for NATCEP, program 
director and skills examiner).
(h) If the NATCEP or individual does not request a hearing in writing, the 
NATCEP or individual is deemed to have waived the opportunity for a hearing, and 
the proposed action may be taken.
(i)  If the NATCEP or individual fails to appear or be represented at the 
scheduled hearing, the NATCEP or individual is deemed to have waived the 
opportunity for a hearing and the action may be taken.
(j) Students who have started a NATCEP from which approval is proposed to be or 
has been withdrawn shall be allowed to complete the NATCEP.
sec.151.10. Waiver and Reciprocity Requirements.
(a) A nurse aide shall be deemed to be competent and shall be placed on the 
registry by waiver of the requirements if the individual:
(1) was found to be competent (whether or not by the State of Texas) before July 
1, 1989, after completion of a nurse aide training course of at least 100 hours 
duration; and
(2) has completed the documentation required by the Texas Department of Health 
(department).
(b) A nurse aide who is on a registry in another state shall be placed on the 
registry by reciprocity if the individual:
(1)  is currently on the nurse aide registry in another state which has a NATCEP 
for training and competency evaluation of nurse aides which is in compliance 
with the Act; and
(2) has completed the documentation required by the department.
(c) A person who requests to be placed on the registry by waiver or reciprocity 
is not qualified to be used as a nurse aide under sec.151.3 (a), (c), or (e) of 
this title, even for less than four months, until the person can prove that he 
or she has been approved for or has been placed on the registry or unless the 
person enrolls in a nurse aide training competency evaluation program (NATCEP).
sec.151.11. Registry; Findings; Inquiries.
(a) The Texas Department of Health (department) shall establish and maintain a 
registry of all individuals who qualify under sec.151.3(a)(2) of this title 
(relating to Facility Requirements). Each individual listed on the registry 
shall keep the department informed of his or her current address and telephone 
number.
(b) A nurse aide shall provide documentation to the department every 24 months 
using a form provided by the department that the nurse aide has performed 
nursing or nursing-related services or acted as a nurse aide for monetary 
compensation for any period of time within the previous 24 months. The 
department shall remove a registry entry for an individual who does not provide 
such documentation, unless a finding of abuse, neglect, or misappropriation of 
resident property is on the registry for that individual.
(c) The department shall review and investigate allegations of neglect, abuse, 
or misappropriation of resident property by a nurse aide. A nurse aide shall be 
given written notice by the department of a proposed finding on an allegation 
and must request, in writing, a hearing within 20 days of the date the notice is 
mailed or personally delivered to the nurse aide or the right to a hearing shall 
be waived, and the department may reach a finding on the allegation without a 
hearing.
(1)  When a timely written request for a hearing is received by the department, 
the department's Professional Licensing and Certification Division of the 
department shall request the department's Office of General Counsel to appoint a 
hearing examiner to conduct the hearing.
(2) At least 10 days prior to a hearing, the hearing examiner shall send a 
written notice to the nurse aide stating the department's proposed findings on 
an allegation and the time, date and place of the hearing.
(3) At the request of the nurse aide and if it is to be used at the hearing, a 
copy of the department's investigative report concerning the incident which is 
the subject of the hearing shall be provided by the hearing examiner to the 
nurse aide. Any portions of the report which do not pertain to the incident 
shall not be disclosed to the nurse aide or used at the hearing.
(4) The hearing shall not be governed by the Administrative Procedure and Texas 
Register Act and the Texas Rules of Civil Evidence.
(5)  The nurse aide shall have the opportunity to refute the basis for the 
proposed findings, to offer verbal and written testimony on his or her behalf, 
to call and examine witnesses, and to cross-examine witnesses.
(6) The nurse aide may represent himself or herself or be represented by 
counsel.
(7) All testimony shall be given under oath.
(8) A record shall be made of the proceedings, either by tape recording, 
stenographic method, or both. Either party may employ a court reporter or obtain 
a transcript at the expense of the requesting party.
(9) The burden shall be upon the department to prove by a preponderance of the 
evidence the truth of the allegations.
(10) The department shall not make a finding that an individual has neglected a 
resident if the individual demonstrates that such neglect was caused by factors 
beyond the control of the individual.
(11)  The hearing examiner, upon completion of the hearing, shall prepare a 
written decision based solely on the evidence presented at the hearing and the 
statutory and regulatory provisions of the Act and this chapter. The decision 
shall state the reasons for the decision and include findings of fact and 
conclusions of law. The decision shall be made within 60 days from the 
department's receipt of the request for a hearing. The 60 day period shall be 
tolled for the period of any continuance granted by the hearing examiner.
(12) If the nurse aide fails to appear or be represented at the scheduled 
hearing, the department may reach a finding on the allegation without a hearing.
(13) The registry, the nurse aide, and the administrator of the facility where 
the event occurred shall be notified of the findings.
(14) The registry shall include the documented findings involving an individual 
listed in the registry, as well as any brief statement of the individual 
disputing the findings.
(d) The information in the registry shall be made available to the public.
(e) The department, in the case of inquiries to the registry, shall verify if 
the individual is listed in the registry and shall disclose any information 
concerning a finding of resident neglect, resident abuse, or misappropriation of 
resident property involving an individual listed in the registry. It shall also 
disclose any statement by the individual related to the finding or a clear and 
accurate summary of such a statement.
sec.151.12. Requirements for Retraining. If there has been a continuous period 
of 24 consecutive months after completion of a NATCEP during none of which a 
person performed nursing or nursing-related services or acted as a nurse aide 
for monetary compensation, the person shall complete a new nurse aide training 
and competency evaluation program (NATCEP) or a new competency evaluation 
program (CEP).
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 27, 1992.
TRD-9201189
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Proposed date of adoption: March 15, 1992
For further information, please call: (512) 834-6628
       
TITLE 28. INSURANCE
Part I. Texas Department of Insurance
Chapter 5. Property and Casualty Insurance
Subchapter K. Commercial Multi-Peril Policies
28 TAC sec.5.9101
Texas Department of Insurance proposes new sec.5.9101, concerning commercial 
multi-peril policies. This section sets out the lines of insurance which may be 
included in the commercial multi-peril policy, and provides for the filing of 
rates and policy forms with the Texas Department of Insurance.
Anderson, deputy commissioner, Property Division, has determined that there will 
be no fiscal implications for state or local government as a result of enforcing 
or administering the section.
Anderson also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be providing flexibility for insurers and insureds in obtaining 
commercial multi-peril insurance. There will be no effect on small businesses. 
There is no anticipated economic cost to persons who are required to comply with 
the section as proposed.
on the proposal may be submitted to Lyndon Anderson, Deputy Commissioner, 
Property Division, 333 Guadalupe, P.O. Box 149104, Austin, Texas 78714-9104.
new section is proposed under the Texas Insurance Code, Article 5.81, which 
provides the Texas Department of Insurance with the authority to approve policy 
forms and rates for multi-peril policies of insurance and to make rules as are 
necessary and desirable to carry out the purposes of this article.
sec.5.9101. Multi-Peril Policies.
(a) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise.
(1) Filer-An insurer that files rates, prospective loss costs, or supplementary 
rating information under this section.
(2) Insurer-Every insurance company, corporation, interinsurance exchange, 
mutual, reciprocal, association, Lloyds or other organization or insurer writing 
any of the characters of insurance business herein set forth in this section, 
but does not include the Texas Catastrophe Property Insurance Association or any 
county or farm mutual insurance company or association as regulated under the 
Texas Insurance Code, Chapters 16 and 17. However, the provisions of subsections 
(c), (d), and (e) of this section shall not apply to Lloyds.
(3) Prospective loss costs-That portion of a rate that does not include 
provisions for profit or expenses, other than loss adjustment expenses, that is 
based on historical aggregate losses and loss adjustment expenses projected by 
development to their ultimate value and through trending to a future point in 
time.
(4) Rate-The cost of insurance per exposure unit, whether expressed as a single 
number or as a prospective loss cost, with an adjustment to account for the 
treatment of expenses, profit, and individual insurer variation in loss 
experience, before any application of individual risk variations based on loss 
or expense considerations. The term does not include a minimum premium.
(5) Supplementary rating information-Any manual, rating schedule, plan of rules, 
rating rules, classification systems, territory codes and descriptions, rating 
plans, and other similar information required by the State Board of Insurance to 
determine the applicable premium for an insured. For the multi-peril package 
policy with a divisible premium, the supplementary rating information must be 
submitted for each line of insurance included. The term includes factors and 
relativities, such as increased limits factors, classification relativities, 
deductible relativities, or other similar factors.
(6) Supporting information-
(A) the experience and judgment of the filer and the experience or information 
of other insurers or advisory organizations relied on by the filer;
(B) the interpretation of any other information relied on by the filer;
(C) descriptions of methods used in making the rates; and
(D) any other information required by the State Board of Insurance to be filed.
(b) Commercial multi-peril package policy. Insurers which write lines of 
insurance covered by the Texas Insurance Code, Chapter 5, may include coverage 
for any two or more of the following lines of insurance in a commercial multi-
peril package policy with rates filed and forms approved pursuant to the 
provisions of this section:
(1) general liability;
(2) commercial property;
(3) boiler and machinery;
(4) commercial crime;
(5) commercial glass; and
(6) inland marine.
(c) Rate standards.
(1) Rates for commercial multi-peril package policies under this section shall 
be made in accordance with the provisions of this subsection.
(2) In setting rates, an insurer shall consider:
(A) past and prospective loss experience inside and outside this state;
(B) any applicable catastrophe hazards;
(C) operation expenses;
(D) investment income;
(E) a reasonable margin for profit and contingencies; and
(F) any other relevant factors inside and outside this state.
(3) An insurer may group risks by classifications for the establishment of rates 
and minimum premiums and may modify classification rates to produce rates for 
individual risks in accordance with rating plans that establish standards for 
measuring variations in those risks on the basis of any factor listed in 
paragraph (2) of this subsection.
(4) Rates may not be excessive, inadequate, or unfairly discriminatory and may 
not be unreasonable.
(5) In setting rates applicable solely to policyholders in this state, an 
insurer shall use available premium, loss, claim, and exposure information from 
this state to the full extent of the actuarial credibility of that information. 
The insurer may use experience from outside this state as necessary to 
supplement information from this state that is not actuarially credible.
(d) Rate filings.
(1) For each line of insurance included in a commercial multi-peril package 
policy with a divisible premium, each insurer shall file with the State Board of 
Insurance all rates, supplementary rating information, and reasonable and 
pertinent supporting information for risks written in this state. For each 
commercial multi-peril package policy with an indivisible premium based on the 
loss experience under such package policy as a whole, each insurer shall file 
with the State Board of Insurance all rates, supplementary rating information, 
and reasonable and pertinent supporting information for risks written in this 
state.
(2) If the State Board of Insurance determines after a hearing that an insurer's 
rates require supervision because of the insurer's financial condition or the 
insurer's rating practices, the State Board of Insurance may require the insurer 
to file with the State Board of Insurance all rates, supplementary rate 
information, and any supporting information prescribed by the State Board of 
Insurance.
(3) An insured that is aggrieved with respect to any filing in effect, or the 
public insurance counsel, may make a written application to the State Board of 
Insurance for a hearing on the filing. The application must specify the grounds 
on which the applicant bases the grievance. If the State Board of Insurance 
finds that the application is made in good faith, that the applicant would be so 
aggrieved if the grounds in the application are established, and that those 
grounds otherwise justify holding the hearing, the State Board of Insurance 
shall hold a hearing not later than the 30th day after the date of receipt of 
the application. The State Board of Insurance shall give at least 10 days' 
written notice to the applicant and to each insurer that made the filing in 
question.
(4) If, after the hearing, the State Board of Insurance finds that the filing 
does not meet the requirements of this section, the State Board of Insurance 
shall issue an order specifying how the filing fails to meet the requirements of 
this section and stating the date on which, within a reasonable period after the 
order date, the filing is no longer in effect. The State Board of Insurance 
shall send copies of the order to the applicant and to each affected insurer.
(5) Each insurer subject to this section shall file with the State Board of 
Insurance, on a quarterly basis, information relating to changes in losses, 
premiums, and market share since January 1, 1993.
(6) Each filing and any supporting information filed under this section, is open 
to public inspection as of the date of the filing.
(e) Disapproval.
(1) The State Board of Insurance shall disapprove a rate if the State Board of 
Insurance determines that the rate filing made under this section does not meet 
the standard established under this section.
(2) If the State Board of Insurance disapproves a filing, the board shall issue 
an order specifying in what respects the filing fails to meet the requirements 
of this section. Upon written request made to the State Board of Insurance, the 
filer is entitled to a hearing not later than the 30th day after the effective 
date of the disapproval order.
(3) If the State Board of Insurance disapproves a rate that is in effect, the 
board may issue a disapproval order only after a hearing held after at least 20 
days' written notice to the insurer that made the filing. The disapproval order 
shall be issued not later than the 15th day after the close of the hearing and 
shall specify how the rate fails to meet the requirements of this section. The 
disapproval order shall state the date on which the further use of that rate is 
prohibited. The board shall set the date not earlier than the 45th day after the 
date on which the hearing closes.
(f) Forms.
(1) A commercial multi-peril package policy or printed endorsement for use in 
connection with a commercial multi-peril package policy described in subsection 
(b) of this section may not be delivered or issued for delivery in this state 
unless the form has been filed with and approved by the State Board of 
Insurance.
(2) Each filing shall be made not later than the 60th day before the date of any 
use or delivery for use. At the expiration of the 60-day period a filed form is 
approved unless, before the expiration of the 60 days, the State Board of 
Insurance approves or disapproves the form by order. Approval of a form by the 
State Board of Insurance constitutes a waiver of any unexpired portion of the 
60-day period. The State Board of Insurance may extend by not more than an 
additional 60 days the period during which it may approve or disapprove a form 
by giving notice to the filer of the extension before the expiration of the 
initial period. At the expiration of any extension and in the absence of any 
earlier approval or disapproval, the form shall be considered approved. For good 
cause shown, the State Board of Insurance may withdraw its approval at any time 
after notice and a hearing.
(3) An order of the State Board of Insurance disapproving any form or any notice 
of the State Board of Insurance's intention to withdraw a previous approval 
shall state the grounds for the disapproval in enough detail to reasonably 
inform the filer of the grounds. An order of withdrawal of a previously approved 
form takes effect on the expiration of the prescribed period, but not sooner 
than the 30th day after the effective date of the withdrawal order, as 
prescribed by the State Board of Insurance.
(4) An insurer may not use in this state any form after disapproval of the form 
or withdrawal of approval by the State Board of Insurance.
(5) If the State Board of Insurance promulgates standard commercial multi-peril 
insurance forms, endorsements, and other related forms, an insurer, at its 
discretion may use these forms instead of the insurer's own forms for writing 
commercial multi-peril insurance. Forms submitted by insurers for approval under 
this subsection must provide coverage equivalent to that provided in the policy 
and endorsement forms used for these lines of coverages on the effective date of 
this section. An endorsement may not reduce coverage provided under the approved 
policy form.
(g) Additional lines of insurance.
(1) In addition to the lines of insurance enumerated in subsection (a) of this 
section, one or more of the following lines of insurance may also be included in 
a multi-peril package policy:
(A) professional liability;
(B) commercial automobile.
(2) The rates and policy forms for the lines of insurance enumerated in 
paragraph (1) of this subsection shall be those rates and forms approved in the 
manner provided by the Texas Insurance Code, Article 5.15 for professional 
liability and Articles 5.101 and 5.06 for commercial automobile and/or 
garagekeeper and garage liability insurance. Policy forms and endorsements for 
these lines of insurance shall be self-contained and severed from all other 
coverages under the multi-peril policy.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 23, 1992.
TRD-9201073
Linda K. von Quintus-Dorn
Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-6327
       
TITLE 31. NATURAL RESOURCES AND CONSERVATION
Part III. Texas Air Control Board
Chapter 101. General Rules
31 TAC sec.101.1
The Texas Air Control Board (TACB) proposes an amendment to sec.101.1, 
concerning definitions. Fourteen new definitions and modifications of four 
existing definitions are proposed. The amendments are based on the latest 
interpretation by the Environmental Protection Agency (EPA) of the various 
provisions in the amended Federal Clean Air Act (FCAA) which changed new source 
review (NSR) requirements for new and modified sources in nonattainment areas. 
These changes include the minimum changes the state of Texas must make in the 
State Implementation Plan (SIP) in order to comply with the amended NSR 
requirements and the federal deadlines for making these changes. In addition, 
parts of the new definitions update the section for consistency with current EPA 
policy. Table I under the definition of "synthetic organic chemical 
manufacturing process" is redesignated as Table II to accommodate a new Table I 
under the definition of "major modification."
The FCAA-mandated deadlines for NSR SIP submittals are May 15, 1992, for sulfur 
oxides, nitrogen dioxide, and lead nonattainment areas; June 30, 1992, for 
inhalable particulate matter nonattainment areas; November 15, 1992, for ozone 
nonattainment areas and transport regions; and November 15, 1992, for carbon 
monoxide nonattainment areas with design values of 12.7 parts per million or 
less. The proposed amendments apply both in designated nonattainment areas and 
in ozone transport regions. Most revisions to the NSR requirements regarding the 
prevention of significant deterioration (PSD) program, under the FCAA, Title I, 
Part C, will be addressed by the TACB in separate rulemaking when additional PSD 
guidance is received from EPA.
Lane Hartsock, deputy director of air quality planning, has determined that for 
the first five-year period the proposed definitions will be in effect, there 
will be no fiscal implications for state and local units of government as a 
result of administering the section.
Mr. Hartsock also has determined that for the first five-year period the 
proposed definitions are in effect, the public benefit anticipated as a result 
of enforcing the section would be an improved understanding by the regulated 
community of the terms commonly used in the permitting and enforcement 
activities of the agency. There will be no effect on small businesses. There are 
no anticipated costs to persons who must comply with the section.
A public hearing on this proposal is scheduled for 1 p.m. on February 25, 1992, 
in the auditorium of the City of Houston Pollution Control Building located at 
7411 Park Place Boulevard, Houston. Another public hearing on this proposal is 
scheduled for 2 p.m. on February 27, 1992, in Room 143-E of the central office 
of the TACB located at 12124 Park 35 Circle, Austin. Public comment, both oral 
and written, on the proposed changes is invited at the hearings.
Written comments not presented at these hearings may be submitted to the TACB 
central office in Austin through February 28, 1992. Material received by the 
Regulation Development Division by 4 p.m. on that date will be considered by the 
board prior to any final action on the proposed exemptions, and a comprehensive 
discussion of the exemption changes are available at the central office of the 
TACB located at 12124 Park 35 Circle, Austin, Texas 78753, and at all TACB 
regional offices. For further information, contact Barry Irwin at (512) 908-
1461.
The amendments are proposed for adoption under the Texas Clean Air Act TCAA), 
sec.382.017, Texas Health and Safety Code (Vernon 1990), which provides the TACB 
with the authority to adopt rules consistent with the policy and purposes of the 
TCAA.
sec.101.1. Definitions.  Unless specifically defined in the Act or in the rules 
of the Board, the terms used by the Board have the meanings commonly ascribed to 
them in the field of air pollution control. In addition to the terms which are 
defined by the Texas Clean Air Act, the following words and terms, when used in 
this chapter, shall have the following meanings, unless the context clearly 
indicates otherwise.
<nl>   Actual emissions (applies only to nonattainment area new source review 
rules Pursuant to Federal Clean Air Act Provisions) -Actual emissions as of a 
particular date shall equal the average rate, in tons per year, at which the 
unit actually emitted the pollutant during a two-year period which preceded the 
particular date and which is representative of normal source operation. The 
reviewing authority may presume that the source-specific allowable emissions for 
the unit are equivalent to the actual emissions. For any emissions unit which 
has not begun normal operations on the particular date, actual emissions shall 
equal the potential to emit of the unit on that date.
<nl>   Allowable emissions (applies only to nonattainment area new source review 
rules pursuant to Federal Clean Air Act provisions) -The emissions rate of a 
stationary source, calculated using the maximum rated capacity of the source 
(unless the source is subject to federally enforceable limits which restrict the 
operating rate or hours of operation or both), and the most stringent of the 
applicable standards set forth in 40 Code of Federal Regulations (CFR) Part 60 
or 61, or the emissions rate specified as a federally enforceable Permit 
condition.
<nl>   Begin actual construction (applies only to nonattainment area, new source 
review rules pursuant to Federal Clean Air Act provisions)- In general 
initiation of physical on-site construction activities on an emissions unit 
which are of a permanent nature. Such activities include, but are not limited 
to, installation of building supports and foundations, laying of underground 
[pipework and construction of permanent storage structures. With respect to a 
change in method of operation, this term refers to those on-site activities 
other than preparatory activities which mark the initiation of the change.
<nl>   Building, structure, facility, or installation (applies only to 
nonattainment area, new source review rules pursuant to Federal Clean Air Act 
Provisions)-All of the pollutant-emitting activities which belong to the same 
industrial grouping (2 digit code from the <nl>Standard Industrial 
Classification Manual 1972<nl>, as amended by the 1977 supplement), are located 
in one or more contiguous or adjacent properties and are under the control of 
the same person (or persons under common control).
<nl>   Commence (applies only to nonattainment area, new source review rules 
pursuant to Federal Clean Air Act provisions)-As applied to construction of a 
malor stationary source or major modification, means that the owner or operator 
has all necessary preconstruction approvals or permits and either has begun a 
continuous program of actual on-site construction of the source or has entered 
into binding agreements or contractual obligations to undertake a program of 
actual construction of the source to be completed within a reasonable time.
<nl>   Construction (applies only to nonattainment area new source review rules 
pursuant to Federal Clean Air Act provisions-Any physical change or change in 
the method of operation (including fabrication, erection, installation, 
demolition or modification of an emissions unit) which would result in a change 
in actual emissions.
<nl>   De minimis threshold -(In regard to any proposed emissions increase in a 
specific nonattainment area) an emissions level as determined by aggregating the 
proposed increase with all other creditable source emission increases and 
decreases during the previous five calendar years including the calendar year of 
the proposed change which equals the major modification level (in tons) for that 
specific nonattainment area. Table I of  s101.1 of this section, specifies the 
various classifications of nonattainment along with the associated emission 
levels which designate a major modification for those classifications.
<nl>   Emissions unit -Any Part of a stationary source which emits or would have 
the potential to emit any pollutant subject to regulation under the Federal 
Clean Air Act.
<nl>   Federally enforceable -All limitations and conditions which are 
enforceable by the administrator or executive director, including those 
requirements developed pursuant to 40 Code of Federal Regulations CFR) Parts 60 
and 61, requirements within any applicable state implementation plan, any permit 
requirements established pursuant to 40 CFR 52.21 or under regulations approved 
pursuant to 40 CFR Part 51 Subpart I, including operating permits issued under 
an EPA-approved program that is incorporated into the state implementation plan 
and that expressly requires adherence to any permit issued under such program.
 Fugitive emission -Any gaseous or particulate contaminant entering the 
atmosphere <nl>which could not reasonably pass<ol> [without first passing] 
through a <nl>stack, chimney,<ol> vent, or other functionally equivalent opening 
designed to direct or control its flow.
 Major facility/stationary source <nl>(applies only to nonattainment area new 
source review rules pursuant to Federal Clean Air Act Provisions)<ol> [(used 
solely for the purpose of determining the applicability of nonattainment area 
new source review under provisions of the Federal Clean Air Act)]-Any 
facility/stationary source which emits, or has the potential to emit, <nl>the 
amount specified in the MAJOR SOURCE column of Table I of this section<ol> [100 
tons per year] or more of any air contaminant (including volatile organic 
compounds) for which a National Ambient Air Quality Standard has been issued.
 Major modification <nl>(applies only to new source review rules pursuant to 
Federal Clean Air Act provisions)<ol> [(used solely for the purpose of 
determining the applicability of New Source Review under provisions of the 
Federal Clean Air Act)] -Any physical change in, or change in the method of 
operation of:
(A) a facility/stationary source that <nl>causes a net increase of<ol> 
[increases by 100 tons per year] its potential to emit volatile organic 
compounds (VOC) or any air contaminant for which a National Ambient Air Quality 
Standard has been issued <nl>by the amount listed in the MAJOR SOURCE column of 
Table I of this section<ol>; or
(B) a major facility/stationary source that would result in a net increase in 
its potential to emit VOC or any air contaminant for which a national ambient 
air quality standard has been issued by an amount equal to or greater than that 
specified in the  <nl>MAJOR MODIFICATION column of Table I<ol> [following 
table].
[graphic]
<nl>   Necessary preconstruction approvals or permits (applies only to 
nonattainment area, new source review rules pursuant to Federal Clean Air Act 
provisions)-Those federal air quality control laws and regulations and those air 
quality control laws and regulations which are part of the applicable State 
Implementation Plan.
<nl>   Net emissions increase (applies only to nonattainment area new source 
review rules pursuant to Federal Clean Air Act provisions)-Any emissions changes 
at the building, structure facility or installation in which the sum of all the 
changes exceeds zero.
<nl>   Nonattainment area -An area which is designated "nonattainment" with 
resect to any air pollutant within the meaning of the Federal Clean Air Act, 
sec.107(d).
<nl>   Reconstruction (applies only to nonattainment area, new source review 
rules pursuant to Federal Clean Air Act provisions-Will be presumed to have 
taken place where the fixed capital costs of the new component exceeds 50% of 
the fixed capital cost of a comparable entirely new source.
<nl>   Secondary emission (applies only to nonattainment area new source review 
rules pursuant to Federal Clean Air Act provisions) -Emissions, except from 
mobile sources. which would occur as a result of the construction or operation 
of a major stationary source or major modification, but do not come from the 
source or modification itself. Secondary emissions must be specific, well 
defined, quantifiable and impact the same general area as the stationary source 
or modification.
 Synthetic organic chemical manufacturing process-A process that produces, as 
intermediates or final products, one or more of the chemicals listed in Table 
<nl>II<ol> [I] of this section.
insert pg 2
insert pg 4
[graphic]
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 17, 1992.
TRD-9200959
Lane Hartsock
Air Quality Planning
Texas Air Control Board
Proposed date of adoption: May 15, 1992
For further information, please call: (512) 908-1451
       
Chapter 116. Control of Air Pollution by Permits for New Construction or 
Modification
31 TAC sec.sec.116.3, 116.4, 116.6, 116.11
The Texas Air Control Board (TACB) proposes amendments to sec.116.3, concerning 
consideration for granting permits to construct and operate; sec.116.4, 
concerning special conditions; sec.116.6, concerning exempted facilities; and 
sec.116.11, concerning permit fees. Amendments to sec.116.3 include many 
editorial improvements throughout subsections (a) and (c) and new provisions to 
reflect new source review requirements of the Federal Clean Air Act Amendments 
of 1990. Subsection (a)-(7) is deleted because it does not apply to any permit 
issued after June 30, 1979, and paragraphs (8)-(15) are renumbered accordingly. 
Additional amendments add nitrogen oxide sources to the requirements in ozone 
nonattainment areas, refer to the new classifications of nonattainment for 
ozone, add a new de minimis threshold test to determine major modifications in 
each nonattainment classification, and add to subsections (a) and (c) a 
requirement to use the new offset ratios for each ozone nonattainment 
classification. An amendment to subsection (a), existing paragraph (9), expands 
the requirement for submittal of expected emissions data to all ozone 
nonattainment areas. Amendments to existing paragraph (12) refer to the new 
classifications of nonattainment and add a new de minimis threshold test to 
determine major modifications in each nonattainment a by classification. A new 
subparagraph (D) is added to existing paragraph (12) to require use of the new 
offset ratios for each nonattainment classification.
An amendment to sec.116.4 clarifies that a condition in a permit may restrict 
the use of standard exemptions at a facility. Amendments to sec.116.6 change 
statutory references to reflect legislative revisions to the Texas Clean Air 
Act, change the reference date of the Standard Exemption List to reflect 
proposed revisions to several exemptions, alter wording to reflect the 1990 
amendments to the Federal Clean Air Act, include as a new paragraph the same 
restriction on use of exemptions as proposed for sec.116.4, and reorder the 
subparts of the section as a result of the new requirements.
Proposed changes to the Standard Exemption List include amendments to nine 
existing standard exemptions and the addition of one new exemption. Standard 
Exemption Number 6 (internal combustion engines and gas turbine engines) is 
rewritten to impose updated emission control technology standards on exempted 
turbines or engines. Standard Exemption Number 7 (combustion units) is modified 
to clarify two conditions. Standard Exemption Number 61 (water/ wastewater 
treatment units) is revised for clarification and to add stringency. Standard 
Exemption Number 68 (soil and water remediation) is rewritten to clarify and 
restrict applicability. Standard Exemption Number 71 (concrete batch plants) is 
revised to clarify applicability and to restrict operations. Two conditions of 
Standard Exemption Number 76 (pilot plants) are extensively rewritten to specify 
more restrictive limits, and a new condition adds further limitations of plant 
size and period of use. Standard Exemption Number 89 (ethylene oxide sterilizing 
equipment/operations) is rewritten to increase stringency and clarify 
applicability.
Standard Exemption Number 93 (temporarily-located concrete batch plants) is 
revised to clarify applicability and to restrict operations. Standard Exemption 
Number 100 (pipeline metering stations) is modified by specifying the pollutants 
to be flared and by exempting natural gas (principally methane) from 
applicability. A new Standard Exemption Number 123 (aerospace manufacturing 
facilities) is proposed to exempt from permit requirements the manufacture of 
components for the aerospace industry while imposing emission controls and other 
limits to operations similar to permitting requirements.
The proposed amendment to sec.116.11 would increase from $50,000 to $75,000 the 
maximum fee referenced in subsection (b)(4). The reference specifically relates 
to the fee to be remitted if no estimate of capital costs is included with the 
permit application. This increase in the maximum fee would provide consistency 
with the $75,000 fee cited elsewhere in the section.
Lawrence E. Pewitt, P.E., director of the permits program, has determined that 
for the first five-year period the proposed rules will be in effect, there will 
be no fiscal implications for state or local units of government as a result of 
enforcing or administering the sections.
Mr. Pewitt also has determined that for of the first five-year period the 
proposed sections are in effect, the public benefit anticipated as a result of 
enforcing the sections will be improvements in the agency's permitting process 
with regard to federal requirements for new source review and an improved 
understanding by the regulated community of certain limitations on exemptions 
from the TACB permitting process. Some small businesses may incur permit 
application expenses due to the changes in the definition for major facilities 
and other federal requirements. There is no anticipated fiscal impact to persons 
as a result of enforcing or administering the sections.
A public hearing on this proposal is scheduled for 1 p.m. on February 25, 1992, 
in the auditorium of the City of Houston Pollution Control Building located at 
7411 Park Place Boulevard, Houston, Texas. Another public hearing on this 
proposal is scheduled for 2 p.m. on February 27, 1992, in Room 143-E of the 
central office of the TACB located at 12124 Park 35 Circle, Austin. Public 
comment, both oral and written, on the proposed changes is invited at the 
hearings.
Written comments not presented at these hearings may be submitted to the TACB 
central office in Austin through February 28, 1992. Material received by the 
Regulation Development Division by 4 p.m. on that date will be considered by the 
board prior to any final action on the proposed revisions. Copies of the 
proposed rule revisions, the proposed exemptions, and a comprehensive discussion 
of the exemption changes are available at the central office of the TACB located 
at 12124 Park 35 Circle, Austin, Texas 78753, and at all TACB regional offices. 
For further information, contact Barry Irwin at (512) 908-1461.
The amendments are proposed for adoption under the Texas Clean Air Act (TCAA), 
sec.382.017 and sec.382.057, Texas Health and Safety Code, (Vernon 1990), which 
provides the TACB with the authority to adopt rules consistent with the policy 
and purposes of the TCAA.
sec.116.3. Consideration for Granting Permits to Construct and Operate.
(a) Permit to construct. In order to be granted a permit to construct, the owner 
or operator of the proposed facility shall submit information to the Texas Air 
Control Board (TACB) which will demonstrate that all of the following are met.
(1) The emissions from the proposed facility will comply with all rules and 
regulations of the TACB and with the intent of the Texas Clean Air Act 
<nl>(TCAA)<ol>, including protection of the health and physical property of the 
people.
(A) In considering the issuance of a permit for construction or modification of 
any facility within 3, 000 feet or less of an elementary, junior 
high/<nl>middle<ol>, or senior high school, the TACB shall consider any possible 
adverse short-term or long-term side effects that an air contaminant or nuisance 
odor from the facility may have on the individuals attending these school 
facilities.
(B) Pursuant to the <nl>TCAA<ol> [Texas Clean Air Act], <nl>sec.382.053<ol> 
[sec.382.053], a permit to construct shall not be issued for a new lead smelting 
plant at a site located within 3,000 feet of the residence of any individual and 
at which lead smelting operations have not been conducted before August 31, 
1987. This subparagraph does not apply to a modification of a lead smelting 
plant in operation on or before August 31, 1987, to a new lead smelting plant or 
modification of a plant with the capacity to produce not more than 200 pounds of 
lead per hour, or to a lead smelting plant that was located more than 3,000 feet 
from the nearest residence when the plant began operations. In this 
subparagraph, "lead smelting plant" means a facility operated as a smeltery for 
the processing of lead.
(2) (No change.)
(3) The proposed facility will utilize the best available control technology 
<nl>(BACT)<ol>, with consideration given to the technical practicability and 
economic reasonableness of reducing or eliminating the emissions from the 
facility.
(4) The emissions from the proposed facility will meet at least the requirements 
of any applicable new source performance standards promulgated by the <nl>United 
States <ol> Environmental Protection Agency <nl>(EPA)<ol> pursuant to authority 
granted under the Federal Clean Air Act <nl>(FCAA)<ol>,  s111, as amended.
(5) The emissions from the proposed facility will meet at least the requirements 
of any applicable emission standard for hazardous air pollutants promulgated by 
the <nl>EPA <ol> [Environmental Protection Agency] pursuant to authority granted 
under the <nl>FCAA<ol>, [Federal Clean Air Act] sec.112, as amended.
(6) (No change.)
[(7) All requirements of sec.129(a)(1) of the Clean Air Act Amendments of 1977 
(Publication Law 95-95). This provision shall not apply to new or modified 
facilities for which construction permits are issued after June 30, 1979.]
<nl>(7)<ol>[(8)]<nl> The <ol> [After June 30, 1979, the] owner or operator of a 
proposed new facility which is a major stationary source of volatile organic 
compound <nl>(VOC)<ol> emissions <nl>or emissions of oxides of nitrogen (NO 
<nl>),<ol> or which is a facility that will undergo a major modification with 
respect to VOC  <nl>or NO <ol> emissions<nl>,<ol> and which is to be located in 
any area designated as nonattainment for ozone in accordance with the 
<nl>FCAA<ol> [Federal Clean Air Act]<nl>,<ol>  s107<nl>,<ol> shall  <nl>meet<ol> 
[demonstrate that] the [following] additional requirements <nl>of subparagraphs 
(A)-(C) of this paragraph.<ol> [are met:] <nl>Table I of sec.101.1 of this title 
(relating to Definitions) specifies the various classifications of nonattainment 
along with the associated emission levels which designate a major stationary 
source or major modification for those classifications. The de minimis threshold 
test must be applied to any proposed VOC or NO emissions increase in an ozone 
nonattainment area. The de minimis thresholds are the same as the major 
modification levels stated in Table I, but aggregated over the previous five-
year period including the calendar year of the proposed change. The past net 
increase must be evaluated even when the proposed increase alone is below the 
major modification level.
(A) The proposed facility will comply with the lowest achievable emissions rate 
(LAER) as defined in <nl> s101.1<ol> [Chapter 101 of this title (relating to 
General Rules)].
(B) (No change.)
<nl>(C) The proposed facility will use the offset ratio for the appropriate 
nonattainment classification as shown in Table I of sec.101.1. For the purpose 
of satisfying the emissions offset reduction requirements of the FCAA, 
sec.173(a)(1)(A), the emissions offset ratio is the ratio of total actual 
reductions of VOC or NO point=4.52p set=4.92p  emissions to total allowable 
emissions increases of such pollutants from the new source.
<nl>(8)<ol>[(9)] <nl> The<ol> [After June 30, 1979, the] owner or operator of a 
proposed new facility which is a major stationary source of <nl>VOC or NO 
[volatile organic compounds (VOC)] or which is a facility that will undergo a 
major modification with respect to VOC <nl>or NO point=4.52p set=4.92p  
emissions, and which is [to be] located in <nl>a nonattainment county for ozone 
shall <ol> [Dallas, El Paso, Harris, Nueces, or Tarrant County will] provide 
information concerning <nl>the<ol> [his] expected emissions to enable the 
executive director to determine that by the time the facility is to commence 
operation, total allowable emissions from existing facilities, from the proposed 
facility, and from new or modified facilities which are not major sources in the 
area will be sufficiently less than the total emissions from existing sources 
allowed in the area under the applicable state implementation plan (SIP) as 
promulgated by the <nl>EPA<ol> [Administrator of the United States Environmental 
Protection Agency] in <nl>the Code of Federal Regulations (CFR) at <ol> 40 
<nl>CFR<ol> [C.F.R.], Part 52, Subpart SS, prior to the application for the 
construction permit so as to represent reasonable further progress as defined in 
<nl>sec.101.1<ol> [Chapter 101 of this title (relating to General Rules)].
<nl>(9)<ol>[(10)] The owner or operator of a proposed facility which will be a 
major stationary source of VOC emissions or will undergo a major modification 
and is [to be] located in any area designated as nonattainment for ozone in 
accordance with the <nl>FCAA,<ol> [Federal Clean Air Act] sec.107 <nl>,<ol> for 
which regulations and a control strategy providing for attainment of the 
standard have not been approved by the <nl>EPA<ol> [United States Environmental 
Protection Agency] shall demonstrate that at the time that the facility is to 
commence operation a net decrease in total allowable VOC emissions in the area 
has been provided taking into account any increases in emissions resulting from 
operation of the proposed new facility or modification.
<nl>(10)<ol>[(11)]<nl> The <ol> [After June 30, 1979, the] owner or operator of 
a proposed new facility to be located anywhere within the state that is a major 
stationary source of emissions of any air contaminant (other than <nl>VOC<ol> 
[volatile organic compounds (VOC)]) for which a National Ambient Air Quality 
Standard has been issued, or is a facility that will undergo a major 
modification with respect to emissions of any air contaminant (other than VOC), 
must meet the following additional requirements if the ambient air quality 
impact of the source's emissions would exceed a de minimis impact level as 
defined in sec.101.1 [of this title (relating to Definitions)] in any area where 
the standard is exceeded or predicted to be exceeded.
(A) The proposed facility will comply with <nl>LAER <ol> [the lowest achievable 
emissions rate (LAER)] as defined in sec.101.1 [of this title (relating to 
Definitions)].
(B)-(C) (No change.)
<nl>(11) <ol>[(12)] The owner or operator of a proposed new facility in a 
designated nonattainment area <nl>for an air contaminant other than ozone, <ol> 
which will be a major stationary source or a major modification of an existing 
facility for <nl>that nonattainment<ol> [any] air contaminant [other than 
volatile organic compounds for which a national ambient standard has been 
issued] must meet the [following] additional requirements <nl>of subparagraphs 
of (A)-(D) of this paragraph <ol> regardless of the degree of impact of its 
emissions on ambient air quality<nl>.<ol> [if the facility is located in a 
designated nonattainment area: ] <nl>Table I of sec.101.1 specifies the various 
classifications of nonattainment along with the associated emission levels which 
designate a major stationary source or major modification for those 
classifications. The de minimis threshold test must be applied to any proposed 
emissions increase in a nonattainment area. The de minimis thresholds are the 
same as the major modification levels stated in Table I, but aggregated over the 
prior five-year period including the calendar year of the proposed change. The 
past net increase must be evaluated even when the proposed increase by itself is 
below the major modification level.
(A) The proposed facility will comply with <nl>LAER <ol> [the lowest achievable 
emissions rate (LAER)] as defined in sec.101. 1 [of this title (relating to 
definitions)] for the nonattaining pollutants.
(B)-(C) (No change.)
<nl>(D) The proposed facility will use the offset ratio for the appropriate 
nonattainment classification as shown in Table I. For the purpose of satisfying 
the emissions offset reduction requirements of the FCAA, sec.173(a) (1)(A), the 
emissions offset ratio is the ratio of total actual reductions of pollutant 
emissions to total allowable emissions increases of such pollutants from the new 
source.
<nl>(12)<ol>[(13)] The proposed facility shall comply with the Prevention of 
Significant Deterioration (PSD) of Air Quality regulations promulgated by the 
<nl>EPA<ol> Environmental Protection Agency (EPA)] in the <nl>CFR <ol> [Code of 
Federal Regulations] at 40 CFR 52.21 as amended October 17, 1988 and the 
Definitions for Protection of Visibility promulgated at 40 CFR 51. 301, hereby 
incorporated by reference, except for the following paragraphs: 40 CFR 52.21(j), 
concerning control technology review; 40 CFR 52.21(1), concerning air quality 
models; 40 CFR 52.21(q), concerning public notification (provided, however, that 
a determination to issue or not issue a permit shall be made within one year 
after receipt of a complete permit application so long as a contested case 
hearing has not been called on the application); 40 CFR 52.21(r) (2), concerning 
source obligation; 40 CFR 52.21(s), concerning environmental impact statements; 
40 CFR 52.21(u), concerning delegation of authority; and 40 CFR 52.21(w), 
concerning permit rescission. The term "Executive Director" shall replace the 
word "Administrator," except in 40 CFR 52.21(b)(17), (f)(1)(v), (f) (3), 
(f)(4)(i), (g), and (t). "Administrator or Executive Director" shall replace 
"Administrator" in 40 CFR 52.21(b)(3)(iii), and Administrator and Executive 
Director" shall replace Administrator" in 40 CFR 52.21(p)(2). All estimates of 
ambient concentrations required under this paragraph shall be based on the 
applicable air quality models and modeling procedures specified in the <nl>EPA 
Guideline on Air Quality Models <ol>, as amended, or models and modeling 
procedures currently approved by EPA for use in the state program, and other 
specific provisions made in the state PSD State Implementation Plan. If the air 
quality impact model approved by EPA or specified in the guideline is 
inappropriate, the model may be modified or another model substituted on a case-
by-case basis, or a generic basis for the state program, where appropriate. Such 
a change shall be subject to notice and opportunity for public hearing and 
written approval of the Administrator of the EPA. Copies of 40 CFR 52.21 and 40 
CFR 51.301 are available upon request from the Texas Air Control Board, 
<nl>12124 Park 35 Circle<ol> [6330 U. S. Highway 290 East], Austin, Texas 
<nl>78753 <ol> [78723].
<nl>(13)<ol>[(14)] In evaluating air quality impacts under paragraphs 
<nl>(10)<ol>[(11)] or <nl>(12)<ol> [(13)] of this subsection, the owner or 
operator of a proposed new facility or modification of an existing facility 
shall not take credit for reductions in impact due to dispersion techniques as 
defined in the <nl>CFR<ol> [Code of Federal Regulations]. The relevant federal 
regulations are incorporated herein by reference, as follows: 40 CFR 51.100(hh)-
(kk) promulgated November 7, 1986; the definitions of "owner or operator," 
"emission limitation and emission standards, " "stack," "a stack in existence," 
and "reconstruction," as given under Sections 40 CFR 51.100(f), (z), (ff), (gg), 
and 40 CFR 60, respectively; 40 CFR 51.118(a), (b), and (c); and 40 CFR 51.164. 
Copies of these sections of the <nl>CFR<ol> [Code of Federal Regulations] are 
available upon request from the Texas Air Control Board, <nl>12124 Park 35 
Circle<ol> [6330 U. S. Highway 290 East], Austin, Texas <nl>78753 <ol> [78723].
<nl>(14)<ol>[(15)] Permits for hazardous waste management facilities shall not 
be issued if the facility is to be located in the vicinity of specified public 
access areas under the following circumstances.
(A)-(F) (No change.)
(b) (No change.)
(c) Emission reductions: offset. At the time of application for a construction 
permit in accordance with this chapter, any applicant who has effected air 
contaminant emission reductions may also apply to the executive director to use 
such emission reductions to offset emissions expected from the facility for 
which the permit is sought provided that the following conditions are met:
(1) The emission reductions are not required by any provision of the Texas SIP 
as promulgated by the <nl>EPA<ol> [Administrator of the U. S. Environmental 
Protection Agency] in 40 <nl>CFR<ol> [C.F.R.], Part 52, Subpart SS, nor by any 
other federal regulation under the <nl>FCAA<ol> [Federal Clean Air Act], as 
amended, such as new source performance standards. <nl>Minimum offset ratios as 
specified in Table I of sec.101.1 will be used in areas designated as 
nonattainment areas.
(2)  (No change.)
(d)-(f) (No change.)
sec.116.4. Special Conditions. <ol> Permits to construct and operate, special 
permits, and exemptions may contain general and special conditions. The holders 
of exemptions, construction and operating permits, and special permits shall 
comply with any and all such conditions [or satisfy the conditions for a 
standard exemption as published by the Executive Director].  <nl>A permit may 
contain condition(s) that preclude future use of standard exemptions at any 
existing or proposed facilities under the same TACB Account Number.
sec.116.6. Exempted Facilities.
(a) Pursuant to the Texas Clean Air Act (TCAA), sec.382.057, the facilities or 
types of facilities listed in the Standard Exemption List, dated <nl>January 17, 
1992<ol> [August 11, 1989], as filed in the Secretary of State's Office and 
herein adopted by reference, are exempt from the permit requirements of the 
TCAA, <nl>sec.382.0518<ol> [sec.382. 051 and sec.382.054], because such 
facilities will not make a significant contribution of air contaminants to the 
atmosphere; provided, however, that:
(1)<nl> total actual<ol> [Actual] emissions <nl>authorized under standard 
exemption<ol> from the proposed facility shall not exceed 250 tons per year of 
carbon monoxide or nitrogen oxides, or 25 tons per year <nl>of volatile organic 
compounds (VOC) or sulfur oxides or inhalable particulate matter, or 25 tons per 
year<ol> of any other air contaminant except carbon dioxide, water, nitrogen, 
methane, ethane, hydrogen, and oxygen;
<nl>(2) [in addition, total] <nl>total<ol> actual emissions <nl>authorized under 
standard exemptions<ol> from the property where the proposed facility is to be 
located shall not exceed 250 tons per year of carbon monoxide or nitrogen 
oxides<nl>,<ol> or 25 tons per year <nl>of VOC or sulfur oxides or inhalable 
particulate matter, or 25 tons per year<ol> of any other air contaminant except 
carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen, unless 
at least one facility at such property has been subject to public notification 
and comment as required by sec.116.10 of this title (relating to Public 
Notification and Comment Procedure);
<nl>(3)<ol>[(2)]  construction or modification of the facility shall be 
commenced prior to the effective date of a revision of the Standard Exemption 
List under which the construction or modification would no longer be exempt;
<nl>(4)<ol>[(3)]  the proposed facility shall comply with the applicable 
provisions of sec.[Section]111 <nl>and <ol> [or] <nl>sec.<ol>112, <nl>and<ol> 
[or] the new source review requirements of Part C <nl>and <ol> [or] Part D, of 
the Federal Clean Air Act <nl>(FCAA)<ol> and regulations promulgated thereunder;
<nl>(5) there are no permits under the same Texas Air Control Board (TACB) 
Account Number that contain a condition or conditions precluding use of the 
standard exemption or standard exemptions.
<nl>(b)<ol>[(4)]  Notwithstanding the provisions of this section, any facility 
which constitutes a major source, or any modification which constitutes a major 
modification[,] under [any new source review requirement of] the <nl>FCAA 
[Federal Clean Air Act],<ol> <nl>as amended by the FCAA Amendments of 1990,<ol> 
and regulations promulgated there under shall be subject to the requirements of 
sec.116.3 of this title (relating to Consideration for Granting Permits to 
Construct and Operate) rather than this section;
<nl>(c)<ol>[(5)] No person shall circumvent by artificial limita- tions the 
requirements of sec.116.1 of this <nl>title (relating to <ol> [chapter, 
concerning] Permit Requirements<nl>).
<nl>(d)<ol>[(b)] The emissions from the facility shall comply with all rules and 
regulations of the <nl>TACB<ol> [Texas Air Control Board (TACB)] and with the 
intent of the TCAA, including protection of health and property of the public 
and all emissions control equipment shall be maintained in good condition and 
operated properly during operation of the facility.
<nl>(e)<ol>[(c)] Copies of the current Standard Exemption List are available 
from the TACB office at  <nl>12124 Park 35 Circle <ol> [6330 U. S. Highway 290 
East], Austin, Texas <nl>78753<ol> [78723], and at all TACB regional offices.
sec.116.11. Permit Fees.
(a) (No change.)
(b) Determination of fees.
(1)-(3) (No change.)
(4) A fee of <nl>$75,000<ol> [$50,000] shall be required if no estimate of 
capital project cost is included with a permit application.
(c)-(f) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 17, 1992.
TRD-9200960
Lane Hartsock
Air Quality Planning
Texas Air Control Board
Proposed possible date of adoption: May 15, 1992
For further information, please call: (512) 908-1451
       
Part X. Texas Water Development Board
Chapter 355. Research and Planning Fund
Subchapter B. Economically Distressed Areas Facility Engineering
31 TAC sec.sec.355.70-355.73
The Texas Water Development Board (the board) proposes amendments to 
sec.sec.355.70-355.73, the repeal of sec.sec.355.74-355.77, and the adoption of 
new sec.sec.355.74-355.76, concerning funding for economically distressed areas 
facility engineering under the research and planning fund.
The amendment to sec.355.70, replacing the term "facility engineering" with 
"facility planning," allows the board to clarify its intent to require a single 
application for plans and specifications and project construction.
The amendment to sec.355.71 allows the board to finance up to 100% of the cost 
of facility planning for water and wastewater facilities to serve economically 
distressed areas. Sections 355.71, 355.72, and 355.73 are amended in order to 
remain consistent with the amendment to sec.355.70.
New sec.355.74 eliminates separate applications for plans and specifications and 
for project construction. Facility plan tasks and construction plans and 
specifications will be included in one application.
The repeal of old sec.355.74 necessitates the repeal of old sec.sec.355.75-
355.77 which will be renumbered as new sec.sec.355.74-355.76. New 
sec.sec.355.74-355.76 will also reflect changes due to the amendment made in 
sec.355.70.
The proposals are made in order to allow the board to continue the efficient 
implementation of the Economically Distressed Areas Program which provides 
financial assistance to those eligible counties which contain residential areas 
without any or with seriously inadequate water supply and sewer services 
creating serious and unacceptable health hazards and threatening the public 
health, safety, and welfare.
Susan Morgan, director of finance, has determined that for the first five-year 
period the sections are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the sections.
Ms. Morgan also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be simplification of the application procedure for the board's 
financial assistance programs and a resulting increase in the number of projects 
financed by the board funding. There will be no effect on small businesses. 
There is no anticipated economic cost to persons who are required to comply with 
the sections as proposed.
The agency has determined there will be no possible impact on local economies.
A public hearing on the sections will be held on February 28, 1992, at 9 a.m. in 
Room 117, Sam Houston Building, 201 East Texas Water Development Board Research 
and Planning Funding, 14th Street, Austin, Texas 78701. Written comments may be 
sent to Todd Chenoweth, Project Director, Economically Distressed Areas, P.O. 
Box 13231, Austin, Texas 78711, and must be received by March 2, 1992.
The amendments are proposed under the Texas Water Code,  s6.101 and the Texas 
Water Code, Chapter 15, Subchapter F, sec.15.403, which requires the board to 
adopt rules necessary to carry out the powers and duties of the board and of 
various programs of the research and planning fund.
sec.355.70. Definitions.  The following words and terms, when used in this 
subchapter, shall have the following meanings, unless the context clearly 
indicates otherwise. Words defined in the Texas Water Code, Chapter 15 or 17, 
and not defined here shall have the meaning provided by the appropriate chapter.
 Facility <nl>planning <ol> [engineering]-The studies and tasks that are 
performed to determine the engineering feasibility of water or wastewater 
facilities and to obtain plans and specifications for constructing the water or 
wastewater facilities for an economically distressed area. Facility 
<nl>planning<ol> [engineering] consists of a facility plan task and a plans and 
specifications task.
sec.355.71. Purpose and Policy.
(a) Availability. The board will make funds available through the research and 
planning fund or development fund to political subdivisions in affected counties 
for up to <nl>100 <ol> [75]% of the cost of facility <nl>planning <ol> 
[engineering] for water and wastewater facilities to serve economically 
distressed areas. [At least 50% of the applicant's minimum required matching 
share shall be provided in the form of cash.] <nl>The board will routinely fund 
up to 75% of the cost of facility planning, with at least 50% of the applicant's 
share to be provided in the form of cash. However, in hardship cases where the 
applicant does not have sufficient funds on hand to fund its share of a project 
in a designated area, the board may fund up to 100% of the cost of facility 
planning.
[(b) Completion of phases. The board will consider and may provide financing for 
plans and specifications only after completion of a facility plan or preparation 
of an equivalent product, and in conjunction with board approval of an 
application for financial assistance to construct water or wastewater facilities 
or both.
[(c) Repayment of costs for plans and specifications. Upon closing a transaction 
that provides financial assistance for facility construction, the applicant may 
be required to return to the board, from any source available to the applicant 
including financial assistance from the board, that portion of costs for plans 
and specifications provided by the board. The board will determine the method 
and form of security for the funds advanced to the applicant for costs for plans 
and specifications.]
<nl>(b)<ol>[(d)]  Engineering. To make the most effective use of the limited 
amount of funds available, the applicant will confer with the board on all 
significant decisions related to facility <nl>planning<ol> [engineering].
<nl>(c)<ol>[(e)]  Professional engineer. All applicable facility 
<nl>planning<ol> [engineering] reports and plans shall be signed and sealed by a 
professional engineer in accordance with the Texas Engineering Practice Act, 
Texas Civil Statutes, Article 3271a.
sec.355.72. Criteria for Eligibility. Political subdivisions must meet the 
appropriate requirements of this section before the board may provide financial 
assistance for facility <nl>planning<ol> [engineering].
(1)-(2)  (No change.)
(3) A political subdivision applying for facility  <nl>planning<ol> 
[engineering] assistance must have any required certificate of public 
convenience and necessity that includes the project area and that is for the 
same type of service to be addressed in the proposed facility <nl>planning<ol> 
[engineering] study; or if the project area does not have a holder of a 
certificate of public convenience and necessity and one is required, the 
applicant must have applied for the certificate of public convenience and 
necessity before the applicant applies for facility plan assistance; or the 
application must be a joint application with the holder of the certificate of 
public convenience and necessity.
(4) (No change.)
(5) If, after submission of a facility <nl>planning <ol> [engineering] 
assistance application, the county average per capita income increases or the 
average unemployment rate decreases so that the county no longer meets the 
definition of affected county in sec.355.70 of this title (relating to 
Definitions), the political subdivision submitting the application will continue 
to be eligible for financial assistance provided the application is not 
substantially amended.
(6)-(7) (No change.)
sec.355.73. Scope of Facility Plan.
(a) A facility plan shall incorporate appropriate data from applicable existing 
planning reports and shall consist of:
(1)-(5) (No change.)
(6) documentation of the number of dwellings occupied on June 1, 1989, and 
number of dwellings to be served by the project within the facility 
<nl>planning<ol> [engineering] area and the economically distressed area;
(7)-(14) (No change.)
(b) The facility plan assistance shall include the items of work described in 
this subsection if approved or required by the board:
(1)-(2) (No change.)
(3) the preparation of applications for necessary state and federal wastewater 
permits. Facility <nl>planning <ol> [engineering] may not include activities 
associated with administrative or legal proceedings by regulatory agencies; and
(4) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 24, 1992.
TRD-9201127
Gail Allan
Assistant General Counsel
Texas Water Development Board
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-7981
       
31 TAC sec.sec.355.74-355.77
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas Water 
Development Board or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Texas Water Code, sec.6.101 and the Texas 
Water Code, Chapter 15, Subchapter F, sec.15.403, which requires the board to 
adopt rules necessary to carry out the powers and duties of the board and of 
various programs of the research and planning fund.
sec.355.74. Scope of Plans and Specification Tasks.
sec.355.75. Submission of Applications.
sec.355.76. Contracts.
sec.355.77. Reports and Documents.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 24, 1992.
TRD-9201130
Gail Allan
Assistant General Counsel
Texas Water Development Board
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-7981
       
31 TAC sec.sec.355.74-355.76
The new sections are proposed under the Texas Water Code, sec.6.101 and the 
Texas Water Code, Chapter 15, Subchapter F, sec.15.403, which requires the board 
to adopt rules necessary to carry out the powers and duties of the board and of 
various programs of the research and planning fund.
sec.355.74. Submission of Applications. An application shall be submitted for 
the facility plan tasks. An application will be in the form and in numbers 
prescribed by the executive administrator. The executive administrator may 
request any additional information needed to evaluate the application, and may 
return any incomplete applications.
sec.355.75. Contracts.
(a) If an application is approved, the board may authorize the executive 
administrator to enter into a contract with the applicant on behalf of the 
board. The contract shall include: scope of work; schedule of work; budget; any 
other terms or conditions required by the executive administrator.
(b) An approved applicant may subcontract any or all of the scope of work. The 
board will not be party to any subcontract, and the political subdivision will 
be solely responsible for monitoring, administering, and requiring subcontractor 
compliance with the terms of the board's contract with the political 
subdivision.
(c) Applicants, contractors, and subcontractors shall maintain financial 
accounts, documents, and records that are acceptable to the board. All records 
shall be made available for examination and audit by the staff of the board and 
the state. Accounting by applicants, contractors, and subcontractors shall be in 
a manner consistent with generally accepted accounting procedures. All records 
will be retained for a minimum period of three years, and records shall be 
retained beyond the three years if litigation, a claim, or an audit is in 
process or if audit findings are not resolved. The three-year period will begin 
upon final payment of the funds retained by the board.
(d) Capital equipment shall not be purchased with facility planning assistance.
sec.355.76. Reports and Documents. All reports, planning documents, plans and 
specifications, and any other work products resulting from facility planning 
assistance must be provided to the board and will be deemed public information. 
The applicant and subcontractors shall be available for presentations of results 
as required by the board.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 24, 1992.
TRD-9201128
Gail Allan
Assistant General Counsel
Texas Water Development Board
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-7981
       
Chapter 363. Rules Relating to Financial Programs
Subchapter E. Economically Distressed Areas
31 TAC sec.363.508
The Texas Water Development Board (the board) proposes an amendment to 
sec.363.508, concerning rules relating to financial programs.
The proposal is made in order to allow the board to continue the efficient 
implementation of the Economically Distressed Areas Program which provides 
financial assistance to those eligible counties which contain residential areas 
without any or with seriously inadequate water supply and sewer services 
creating serious and unacceptable health hazards and threatening the public 
health, safety, and welfare.
Susan Morgan, director of finance, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section.
Ms. Morgan also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be simplification of the application procedure for the board's 
financial assistance programs and a resulting increase in the number of projects 
financed by the board funding. There will be no effect on small businesses. 
There is no anticipated economic cost to persons who are required to comply with 
the section as proposed.
The agency has determined there will be no possible impact on local economies.
A public hearing on the section will be held on February 28, 1992, at 9 a.m. in 
Room 117, Sam Houston Building, 201 East 14th Street, Austin, Texas 78701. 
Written comments may be sent to Todd Chenoweth, Project Director, Economically 
Distressed Areas, P.O. Box 13231, Austin, Texas 78711, and must be received by 
March 2, 1992.
The amendment is proposed under the Texas Water Code, sec.6.101, which requires 
the board to adopt rules necessary to carry out the powers and duties of the 
board provided by the Texas Water Code.
sec.363.508. Facility Engineering Requirements. The application shall include 
all of the facility engineering data, studies, and analysis described in 
sec.355.73(a) [sec.355.76(a)] of this title (relating to Scope of Facility 
<nl>Plan<ol> [Engineering Phases], and the relevant data and information 
described in sec.355.73(b) [sec.355.76(b)].
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 24, 1992.
TRD-9201129
Gail Allan
Assistant General Counsel
Texas Water Development Board
Earliest possible date of adoption: March 2, 1992
For further information, please call: (512) 463-7981
       
TITLE 40. SOCIAL SERVICES AND ASSISTANCE
Part I. Texas Department of Human Services
Chapter 27. Intermediate Care Facility for the Mentally Retarded (ICF-MR)
Subchapter G. Additional Facility Responsibilities
40 TAC sec.27.701
The Texas Department of Human Services (DHS) proposes an amendment to sec.27. 
701, concerning agreements with local school districts, in its Intermediate Care 
Facilities for the Mentally Retarded rule chapter. Senate Bill 417, passed by 
the 71st Texas Legislature, requires DHS and the Texas Education Agency (TEA) to 
develop a memorandum of understanding concerning educational space and 
education-related services for school-age residents of intermediate care 
facilities for the mentally retarded (ICFs-MR). DHS is proposing the amendment 
to cite the memorandum of understanding which DHS and TEA developed to clarify 
the responsibilities of the ICFs-MR and the school districts. The 
responsibilities include providing space for educational activities, treatment 
and education-related services, and coordination of services between the ICFs-MR 
and school districts. The memorandum of understanding also delineates the 
respective responsibilities of TEA and DHS for assisting in the resolution of 
problems between school districts and ICFs- MR.
Burton F. Raiford, interim commissioner, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local governments as a result of enforcing or administering the 
section.
Mr. Raiford also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be that children with mental retardation are educated in the least 
restrictive environment that ensures effective expenditure of state funds. There 
will be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the section as proposed.
Questions about the content of the proposal may be directed to Marc Gold at 
(512) 450-3174 in DHS's Institutional Care Section. Comments on the proposal may 
be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-017, 
Texas Department of Human Services E-503, P.O. Box 149030, Austin, Texas 78714-
9030, within 30 days of publication in the Texas Register.
The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs.
sec.27.701. Agreements with Local School Districts.
(a) As a condition of contracting to participate in the Title XIX Texas Medical 
Assistance Program, a facility that serves individuals between the ages of three 
and 21, inclusively, must meet the following requirements.
(1)-(2) (No change.)
<nl>(3) The facility must abide by the memorandum of understanding relating to 
school-age residents of intermediate care facilities for the mentally retarded 
as published by the Texas Education Agency under 19 Texas Administrative Code 
sec.89.243.
(b)-(c) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 23, 1992.
TRD-9201119
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: April 1, 1992
For further information, please call: (512) 450-3765
       
Chapter 49. Child Protective Services
Subchapter A. Administration
40 TAC sec.49.105
The Texas Department of Human Services proposes an amendment to sec.49.105, 
concerning criminal record checks, in its Child Protective Services (CPS) 
chapter. The amendment extends eligibility for requesting criminal history 
checks to every volunteer organization authorized to request these checks under 
state law. State law currently authorizes the Court-Appointed Special Advocates 
(CASA) Program and Texas chapters of the Big Brothers/Big Sisters Program to 
request CPS criminal history checks. The purpose of the amendment is to allow 
the department to implement the law without having to amend sec.49.105 whenever 
the legislature authorizes additional volunteer organizations to request 
criminal history checks.
Burton F. Raiford, interim commissioner, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local governments as a result of enforcing or administering the 
section.
Mr. Raiford also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be that prospective volunteers will be screened for previous 
histories of criminal child abuse or neglect before they begin working with 
volunteer organizations that serve abused and neglected children, as specified 
under state law. There will be no effect on small businesses as a result of 
enforcing or administering the section. There is no anticipated economic cost to 
people who are required to comply with the proposed section.
Questions about the content of this proposal may be directed to Ray Worsham at 
(512) 450-3362 in the Protective Services for Families and Children Department. 
Comments on the proposal may be submitted to Nancy Murphy, Policy and Document 
Support-376, Texas Department of Human Services E-503, P.O. Box 149030, Austin, 
Texas 78714-9030, within 30 days of publication in the Texas Register.
The amendment is proposed under the Human Resources Code, Title 2, Chapter 22, 
which authorizes the department to administer public assistance programs, and 
Chapter 41, which authorizes the department to enforce laws for the protection 
of children. The amendment is also proposed under the Texas Family Code, Title 
2, Chapter 34, which authorizes the department to provide services to alleviate 
the effects of child abuse and neglect.
sec.49.105. Criminal Records Checks for <nl>Authorized Volunteer Organizations 
[Big Brothers/Big Sisters Volunteers].
<nl>(a) To obtain information about the possible criminal history of a person 
who has applied to serve as a volunteer, volunteer organizations authorized by 
law to obtain such information through the Texas Department of Human Services 
(DHS) must give DHS identifying information about the applicant on a form 
designated by DHS for this purpose. DHS provides the information directly to the 
volunteer chapter or affiliate that requests it.
<nl>(b) Criminal history information obtained by DHS is privileged information 
reserved for the exclusive use of DHS staff and appropriate staff of volunteer 
organizations that are authorized to receive it under state law.  <ol>[To obtain 
criminal history information through DHS, Big Brothers/Big Sisters chapters in 
Texas must submit identifying information on persons applying as volunteers on 
forms designated for this purpose. DHS returns all information directly to the 
local affiliates. Criminal history information obtained by DHS is privileged 
information for the exclusive use by DHS staff and people authorized to receive 
the records.]
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 23, 1992.
TRD-9201120
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: April 1, 1992
For further information, please call: (512) 450-3765
       
Subchapter U. Services to Truants and Runaways Program
40 TAC sec.sec.49.2101-49.2111
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sectionsmay be examined in the offices of the Texas Department 
of Human Services or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The Texas Department of Human Services proposes to repeal Subchapter U, 
sec.sec.49.2101-49.2111, concerning services to truants and runaways, and 
propose new Subchapter U, sec. s49.2101-49.2110, concerning services to runaways 
and at-risk youth, in its Child Protective Services (CPS) chapter. The purpose 
of the repeals and new sections is to improve CPS's program of contracting for 
short-term counseling and residential services to runaways and at-risk youth and 
their families.
The new sections emphasize the program's focus on the short-term nature of the 
services provided and the importance of serving the entire family whenever 
possible. Existing program requirements have also been rewritten and 
reorganized. The new sections now cover the following major topics: basic 
program description, clients, contractors, nonresidential services, emergency 
residential care, services to abandoned youth, interagency local coordination, 
and financial requirements.
Burton F. Raiford, interim commissioner, has determined that for the first five-
year period the proposed repeals and new sections will be in effect there will 
be no fiscal implications for state or local governments as a result of 
enforcing or administering the sections.
Mr. Raiford also has determined that for each year of the first five years the 
sections and repeals are in effect the public benefit anticipated as a result of 
enforcing them will be that youth and their families will be helped in resolving 
crises that threaten their capacity to live together. The proposal will also 
help youth and families develop skills to cope with problems and stresses in 
their homes and help parents resume their parental responsibilities and continue 
to meet them on an ongoing basis. Lastly, the proposal will provide short-term 
residential care for youth whose immediate return to the home is not advisable. 
There will be no effect on small businesses as a result of enforcing or 
administering the repeals and new sections. There is no anticipated economic 
cost to persons who are required to comply with the proposed new sections and 
repeals.
Questions about the content of this proposal may be directed to Thomas Chapmond 
at (512) 450-3309 in the Protective Services for Families and Children 
Department. Comments on the proposal may be submitted to Nancy Murphy, Policy 
and Document Support-357, Texas Department of Human Services E-503, P.O. Box 
149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas 
Register.
The repeals are proposed under the Human Resources Code, Title 2, Chapter 22, 
which authorizes the department to administer public assistance programs, 
including a program of services for children who have been truant or who have 
run away from home, children who are at risk of running away from home or at 
risk of abuse or neglect, and the families of all these children. The repeals 
are also proposed under the Texas Family Code, Title 2, Chapter 34, which 
authorizes the department to accept reports of children who have been truant or 
who have run away from home.
sec.49.2101. Definitions.
sec.49.2102. Contractors.
sec.49.2103. Client Eligibility.
sec.49.2104. Minimum Required Services.
sec.49.2105. Minimum Standards for Casework/Counseling.
sec.49.2106. Minimum Standards for Emergency Residential Care.
sec.49.2107. Coordination with Child Protective Services.
sec.49.2108. Services to Abandoned Children.
sec.49.2109. Juvenile Probation.
sec.49.2110. Certified Local Resources Requirements.
sec.49.2111. Funding Requirements.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 24, 1992.
TRD-9201161
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: April 15, 1992
For further information, please call: (512) 450-3765
       
Subchapter U. Services to Runaways and At-Risk Youth
40 TAC sec.sec.49.2101-49.2110
The new sections are proposed under the Human Resources Code, Title 2, Chapter 
22, which authorizes the department to administer public assistance programs, 
including a program of services for children who have been truant or who have 
run away from home, children who are at risk of running away from home or at 
risk of abuse or neglect, and the families of all these children. The repeals 
are also proposed under the Texas Family Code, Title 2, Chapter 34, which 
authorizes the department to accept reports of children who have been truant or 
who have run away from home.
sec.49.2101. Program Description.
(a) Under the Services to Runaways and At-Risk Youth Program, the Texas 
Department of Human Services (DHS) contracts for short-term counseling and 
residential services to runaway youth, to youth at risk of running away, to 
truants, to youth at risk of abuse or neglect, and to their families. The 
purposes of these services are:
(1)  to prevent running away from home and truancy;
(2) to reunite runaway youth with their families, and remedy the causes of their 
running away; and
(3) to reduce the risk of abuse and neglect that may lead to running away or 
truancy.
(b) The Services to Runaways and At-Risk Youth program gives priority to 
strengthening the family. Whenever possible, contractors must provide services 
to youth and their families while the youth remain in their homes.
sec.49.2102. Clients.
(a) Eligibility. Youth between the ages of 10 and 17 inclusively, and their 
families, are eligible to receive services if the youth fit any of the following 
eligibility categories.
(1)  Runaway youth. A youth who has left home or who has no identifiable 
residence. A youth whose parents or caretakers have told him to leave or 
consented to his departure is considered a runaway.
(2) Youth at risk of running away. A youth who appears likely to run away from 
home.
(3)  Truant. A youth who has been voluntarily absent from school for reasons 
that the school does not accept.
(4) Youth at risk of abuse or neglect. A youth referred by the Texas Department 
of Human Services' (DHS's) Protective Services for Families and Children (PSFC) 
Department to reduce the risk of abuse or neglect. PSFC may make such a referral 
only after completing an investigation of child abuse or neglect and deciding 
not to directly provide continuing services. Accordingly, a youth with an open 
protective services case is not eligible under this heading.
(b) Exception. Youth who are currently on probation for delinquent conduct, on 
parole, or in the custody of the Texas Youth Commission are not eligible for 
services.
(c) Documenting eligibility. The contractor must determine each youth's category 
of eligibility as designated in subsection (a) of this section, specify it in 
the youth's case record, and include documentation in the case record to support 
the eligibility determination.
(d) Changes in eligibility. When there are changes in the basis of a client's 
eligibility that affect the services the client may receive, the contractor must 
document the changes in the case record.
(e)  Equal access. Contractors must give all eligible clients equal access to 
services whether the clients have requested services directly or been referred. 
If referrals begin to exceed a contractor's service capacity, the contractor 
must establish priorities or develop other methods to address the overload. The 
contract manager must approve the contractor's methods of addressing this 
overload.
sec.49.2103. Contractors
(a) Types of contractors. The Protective Services for Families and Children 
(PSFC) Department has the authority to contract with any of the following types 
of providers to provide services to runaways and at-risk youth:
(1) private nonprofit agencies;
(2) public agencies including but not limited to county governments, local 
offices of the Texas Department of Mental Health and Mental Retardation, and 
school districts;
(3) private for-profit agencies; and
(4)  individuals.
(b) Compliance with applicable requirements. Contractors for services to 
runaways and at-risk youth must comply with all applicable requirements of 
Chapter 69 of this title (relating to Contracted Services) and the requirements 
of this subchapter.
(c) Restriction on county governments. County governments that contract to 
provide services to runaways and at-risk youth must not include these services 
in their juvenile probation or juvenile justice activities. Contracting counties 
must ensure that the following conditions are satisfied.
(1) Staff providing services must not be on duty as, or serving in the capacity 
of, juvenile probation officers. They also must not be performing functions 
unique to juvenile probation. If staff providing services are employed by a 
juvenile probation department, they must make every effort to ensure that 
clients are aware that they are:
(A) not juvenile probation officers; and
(B) not functioning in a juvenile probation capacity.
(2) County staff providing services must provide them in facilities that are 
separate and distinct from juvenile probation offices and juvenile detention 
facilities. If county staff provide services to runaways and at-risk youth in a 
facility that is adjacent to a juvenile probation or detention facility, the two 
facilities must:
(A) be separate;
(B) have separate entrances; and
(C) be clearly distinguished.
(d) Scope of the restriction. The restriction specified in subsection (c) of 
this section does not prohibit a contracting county's juvenile probation 
department from administering contract services to runaways and at-risk youth.
(e) Service area. Each contractor must serve a primary county. A contractor may 
also receive funding to provide services in as many as four outlying counties. 
In each outlying county served under the contract, the contractor must:
(1) have a clearly identified office;
(2) provide a staff person at least part time; and
(3) be able to provide crisis-intervention services within 24 hours of any 
request.
sec.49.2104. Nonresidential Services.
(a) Duration of nonresidential services. Each eligible youth and family may 
receive nonresidential services for as many as 90 days in any 12-month period. 
If a youth and family still need services after receiving a cumulative total of 
90 days of service in a 12-month period, the administrator of the contractor's 
Services to Runaways and At-Risk Youth program may approve as many as 90 
additional days of service. The administrator must document the reason for the 
extension in the case record. No youth or family may receive more than 180 days 
of nonresidential service funded through this program in any 12-month period.
(b) Types of nonresidential service.
(1) Each contractor must directly provide the following types of service:
(A) outreach. Promotion of available services to encourage eligible youth and 
families to use them;
(B) reception and screening. Initial review of prospective new clients, 
determination of their eligibility, and referral of ineligible youth and 
families to appropriate alternative services. Reception and screening services 
must be available 24 hours a day every day of the year;
(C)  assessment. Consideration of the needs of eligible clients and development 
of service recommendations;
(D) case planning. Development and revision of specific service plans for 
eligible youth and families;
(E) crisis intervention. Actions taken to resolve the immediate crisis that 
prompted the request for services. Crisis intervention services may be provided 
individually or to the family as a whole. Whenever possible, the resolution of 
the immediate crisis should allow the youth to remain in the home while 
receiving counseling.
(2) Each contractor must also either directly provide or arrange for the 
following types of service;
(A) counseling. Communication and emotional support in a personal or group 
setting to help the youth and family resolve the problems that led to the 
request for services. Counseling may be provided individually or to the family 
as a whole.
(B) skills-based training for parents and youth. Structured training sessions to 
improve skills in communication, problem solving, decision making, and conflict 
resolution. Skills-based training must be provided to the parents and to the 
youth in separate sessions. Training sessions must be clearly distinguished from 
counseling sessions, particularly when the same person provides both.
sec.49.2105. Nonresidential Service Requirements.
(a) Crisis intervention.
(1) The contractor must ensure that individual and family crisis-intervention 
services are available 24 hours a day every day of the year.
(2) Contractors must encourage clients to accept crisis-intervention counseling 
on a family basis rather than on an individual basis, unless distances or severe 
hostilities preclude counseling with the family. If the family does not 
participate in crisis counseling, the contractor must document the reasons for 
nonparticipation in the youth's case record.
(b)  Counseling.
(1) Contractors must provide or arrange for counseling services on an individual 
or a family basis whenever possible. If the parents do not participate in 
counseling, or if the youth does not participate, the contractor must document 
the reasons for nonparticipation in the youth's case record.
(2) Each counselor providing this service must have a Bachelor's degree and at 
least one year of experience in working with youth or families. An additional 
year of experience in working with youth or families may be substituted for each 
year of college short of the four years normally required to secure a Bachelor's 
degree.
(3) When a youth returns to a family that lives too far away for the contractor 
to provide counseling services directly, the contractor must make reasonable 
efforts to refer the youth and family to counseling services in the community to 
which the youth has returned. The contractor must document these efforts in the 
youth's case record.
(4)  The primary goal of counseling services is to enable the youth to remain in 
or return to the family. When this is not possible, the contractor must include 
an explanation and a statement of alternative goals in the case record.
(c)  Face-to-face contact. The primary caseworker or counselor must have face-
to-face contact at least twice a month with each youth or family receiving 
services.
(d) Case planning.
(1) The contractor must begin developing the initial service plan within three 
workdays after the initial intervention, and must complete it within 10 
workdays. At a minimum, the plan must include the following elements:
(A) the services to be provided;
(B) the name of the person or agency providing each service;
(C)  the time frame for each service;
(D) the anticipated outcomes; and
(E) the youth's and parents' signatures or an explanation of their failure to 
sign.
(2) The contractor must review and update the service plan every 30 days. The 
contractor must involve the youth and attempt to involve the family in each 
service-plan review.
(e) Case closure. The contractor must complete a case-closure summary at the 
conclusion of each youth's services and include it in the youth's case record. 
The summary must specify
(1) the reasons for closing the case;
(2) the services that were provided;
(3) the actual outcomes; and
(4) all referrals for additional services from other sources.
(f) Follow-up survey.
(1) To assess the effectiveness of services, the contractor must conduct a 
follow-up survey of each youth or family whose case has been closed. The survey 
must include all questions specified by the Protective Services for Families and 
Children (PSFC) Department.
(2) The survey must take place two to three months after the conclusion of 
services. It may be conducted in person, by telephone, or by mail.
(3) The contractor must document the results of the survey in the case record. 
If the youth and family cannot be reached, the contractor must document the 
attempts made to contact them in the case record.
(4) The contractor must report the results of follow-up surveys to PSFC in its 
monthly summaries of statistics.
sec.49.2106. Emergency Residential Care.
(a) General description. In addition to providing nonresidential services, each 
contractor must directly provide or arrange for emergency residential care. 
Throughout this subchapter, the phrase "emergency residential care" refers to 
the short-term placement of a runaway or at-risk youth in a licensed, 24-hour, 
child care facility or a licensed foster home. Only runaway youth and youth at-
risk of running away qualify for emergency residential care. Truants and youth 
at risk of abuse or neglect do not qualify.
(b) Efforts to reunite the family.
(1) Before a contractor provides or arranges for emergency residential care, the 
contractor must make reasonable efforts to reunite the family. If these efforts 
are unsuccessful, the contractor may provide emergency residential care. 
However, the youth's placement in care must be as brief as possible; and the 
contractor must continue trying to reunite the family throughout the placement. 
The contractor must document its efforts to reunite the family in the case 
record.
(2) If the contractor's efforts to return a youth home are unsuccessful, the 
contractor must document in the case record the plans for an alternative 
placement when the youth leaves emergency residential care. The alternative 
placement may be arranged either by the contractor or by the person or agency 
responsible for the youth.
(c) Family counseling. When a youth is in emergency residential care, the 
contractor must make reasonable efforts to provide or arrange for counseling for 
the youth's family. The contractor must document these efforts in the youth's 
case record.
(d)  Service area. Each contractor must be capable of providing emergency 
residential care in the geographic area that the contractor serves. Contractors 
may arrange for emergency residential care outside this area only when:
(1)  a youth must be placed outside the area in order to be near his family, or
(2) the contractor temporarily needs a second facility to back up its primary 
facility.
(e) Duration of emergency residential care. Each runaway or at-risk youth who is 
eligible for emergency residential care as specified in subsection (a) of this 
section may receive as many as 30 consecutive days of this care. When a youth 
still needs emergency residential care after receiving 30 consecutive days of 
service, the contractor's program administrator may approve as many as 30 
additional days if the contractor can document that, before the additional 30-
day period ends, the youth will either return home or receive an alternative 
placement. During any 12-month period, no youth may receive a cumulative total 
of more than 60 days of emergency residential care under this program. And no 
contractor that provides emergency residential care to more than 15 youth per 
year may approve extensions for more than 25% of the youth who receive emergency 
residential care from the contractor during the fiscal year.
sec.49.2107. Service Requirements for Emergency Residential Care.  All 
contractors must meet the following requirements for emergency residential care.
(1) Availability. Emergency residential care must be available 24 hours a day 
every day of the year.
(2) Facility.
(A)  Emergency residential care must be provided in licensed, 24-hour, child 
care facilities that are in compliance with all applicable licensing 
requirements. Foster homes certified by licensed child-placing agencies meet 
this requirement.
(B) No facility providing emergency residential care under this program may have 
more than 24 beds. However, contractors that had more than 24 beds under the 
Services to Truants and Runaways program in fiscal year 1984 have until 
September 1, 1992, to comply with this requirement.
(C) No contractor may use a juvenile detention center or any other locked 
facility to provide emergency residential care under this program.
(3) Frequency of contact. When a contractor subcontracts for emergency 
residential care, the contractor must:
(A) have face-to-face contact with each youth admitted to care before the 
admission takes place; and
(B) contact each youth in care at least three times a week, with at least one of 
these contacts being a face-to-face contact by the primary caseworker. The 
contractor must document the reasons for any failure to make these contacts in 
the case record.
(4)  Notifications. The contractor must notify a youth's parents or managing 
conservator within 24 hours of the youth's admission to emergency residential 
care. If the parents or managing conservator cannot be contacted, the contractor 
must notify a law enforcement agency of the youth's presence as specified in the 
Texas Penal Code, sec.25.07.
(5) Service plan.
(A) Within three days of a youth's admission to emergency residential care, the 
contractor must develop a service plan and file it in the youth's case record. 
The contractor must give the parents or managing conservator, the youth, and the 
referring agency (if any) an opportunity to make suggestions for the service 
plan. The contractor must also give the parents or the managing conservator a 
copy of the plan.
(B) At a minimum, the service plan must include the following elements:
(i) an assessment of the youth's immediate needs;
(ii) a description of the efforts made to keep the family together, or to return 
the youth to the home, rather than placing the youth in emergency residential 
care;
(iii) the expected length of stay;
(iv)  the youth's understanding of and feelings about the placement;
(v)  the services to be provided;
(vi) the name of the person or agency providing each service;
(vii) the time frame for each service;
(viii) the anticipated outcomes; and
(ix) the signatures of the youth and of the parents or the managing conservator, 
or an explanation of their failure to sign.
(C) The contractor must informally review the service plan every week and note 
the youth's progress toward the plan's stated goals. The contractor must 
formally review and update the service plan when a youth remains in emergency 
residential care for more than 30 consecutive days. The parents or managing 
conservator, the youth, and the referring agency (if any) must have an 
opportunity to participate in the review; and the contractor must give the 
parents or the managing conservator a copy of the updated plan.
(6) Discharge. The contractor must complete a discharge summary on the day of 
the youth's discharge from emergency residential care, and keep it in the 
youth's case record. The summary must specify:
(A)  the date of discharge;
(B) the reasons for discharging the youth from emergency residential care;
(C) the name and address of the person into whose care the youth is discharged, 
and that person's relationship to the youth; and
(D) the follow-up services the youth is to receive after discharge, and the 
providers that will deliver them.
(7) Follow-up survey. The contractor must conduct a follow-up survey of each 
youth or family whose case has been closed. The survey must conform to the 
requirements specified in sec.49.2105(f) of this title (relating to 
Nonresidential Service Requirements).
sec.49.2108. Services to Abandoned Youth.
(a) Throughout this subchapter, the term "abandoned youth" refers to any youth:
(1) whose parents or managing conservator cannot be located; or
(2) whose parent or managing conservator has neither permitted the youth to 
return home nor arranged for the youth's care, after the youth has been absent 
from the home for any reason, including having run away, as specified in the 
Texas Family Code, sec.34.012(2)(C).
(b) Contractors must make reasonable efforts to reunite the family of an 
abandoned youth who qualifies for services.
(1)  Parents' whereabouts unknown. If the whereabouts of a youth's parents are 
unknown, the contractor must diligently try to locate the parents within 24 
hours of initiating services. The contractor must immediately notify the Child 
Protective Services (CPS) program if the parents cannot be located within 24 
hours. After notifying CPS, the contractor must keep trying to locate the 
parents, document all efforts to locate them in the youth's case record, and 
work with CPS staff to determine what responsibility CPS will assume for the 
youth's care and placement if the parents are not located.
(2) Parents' refusal to accept responsibility. If a youth's parent or managing 
conservator has refused to permit the youth to return home and refused to make 
other arrangements for the youth's care, the contractor must diligently try to 
resolve the problems that have caused the parent or conservator to refuse 
responsibility. If the contractor determines that the parent or conservator is 
likely to continue refusing responsibility despite the contractor's efforts, the 
contractor must report the parent's or conservator's refusal to CPS within 24 
hours of making the determination. After notifying CPS, the contractor must keep 
trying to engage the parent or conservator in services with the goal of 
eventually returning the youth home. The contractor must document its efforts to 
engage the parent or conservator in services in the youth's case record, and 
work with CPS staff to determine what responsibility CPS will assume for the 
youth's care and placement if the efforts remain unsuccessful.
sec.49.2109. Interagency Coordination.
(a) Child Protective Services (CPS) program referrals to contractors.
(1) Local office agreement. Each contractor must establish a written agreement 
with the primary CPS office in each county that the contractor serves. The 
agreement must:
(A) establish guidelines for determining when CPS should refer clients to the 
contractor for services to runaways and at-risk youth;
(B)  outline procedures for making and receiving such referrals;
(C)  assign responsibilities for providing services; and
(D) designate a CPS staff member as the local office's contact person for 
services to runaways and at-risk youth. If the contractor is a participant in 
the county's Memorandum of Understanding (MOU) on Services to Runaways, the 
contractor may substitute the MOU for the agreement required in this paragraph.
(2) Who can be referred. When referring a youth or a family to a contractor, CPS 
staff must ensure that the referral meets applicable eligibility requirements. 
These requirements vary according to the type of presenting problem and the CPS 
stage of service. The differing requirements are specified in the following 
chart:
[graphic]
(b) Juvenile probation department referrals to contractors. Each contractor must 
establish a written agreement with the juvenile probation department in each 
county that the contractor serves. The agreement must:
(1) establish guidelines for determining when the juvenile probation department 
should refer clients to the contractor;
(2) outline procedures for making and receiving such referrals;
(3) assign responsibilities for providing services; and
(4) designate a juvenile probation department staff member as the department's 
contact person for services to runaways and at-risk youth. If the contractor is 
a participant in the county's MOU on Services to Runaways, the contractor may 
substitute the MOU for the agreement required in this subsection.
(c) Community collaboration. Each contractor must develop and maintain a local 
advisory council to support and guide the contractor's service planning and 
delivery. The contractor must make reasonable efforts to include major, local 
youth-serving agencies on the advisory council, and to consult with such 
agencies if they are not on the council. Examples of these agencies include 
schools, juvenile probation departments, CPS units, and local units of the Texas 
Department of Mental Health and Mental Retardation.
sec.49.2110. Financial Requirements.
(a) Maximum funding.
(1) The Texas Department of Human Services' (DHS's) funding for contracted 
services must not exceed the following limits.
(A) A contractor whose primary county has a population of 500,000 or more may 
receive up to $175,000 for serving that county.
(B) A contractor whose primary county has a population under 500,000 may receive 
up to $150,000 for serving that county.
(C) A contractor may receive up to $25,000 for each additional county served, up 
to the maximum of four additional counties specified in sec.49.2103(e) of this 
title (relating to Contractors).
(2)  Contractors are not guaranteed funding at the maximum level. Actual funding 
levels depend on regional allocations.
(b) Ten percent match. Each contractor must match DHS's funding with certified 
local resources equal to at least 10% of the funding received from DHS. The 
contractor's match must conform to all applicable requirements of sec.69.237 of 
this title (relating to Certified Local Resources); and to the following 
requirements.
(1) The certified local resources used to make the match may include:
(A) donated cash;
(B) depreciation on fixed equipment or buildings owned by the contractor;
(C) grant funds;
(D) fees for services collected from clients or other parties; and
(E) federal funds, when permitted under applicable federal laws.
(2) The match cannot include:
(A)  donated goods and services; or
(B) capital expenditures.
(c)  Fees for services.
(1) The contractor may charge fees for contracted services if:
(A) the contractor uses a sliding-fee schedule based on the client's or other 
party's ability to pay;
(B) DHS has approved the sliding-fee schedule; and
(C) the contractor keeps detailed documentation of the fees assessed, the 
grounds for assessing them, and the amounts collected.
(2) The contractor must not deny services because a client is unable or 
unwilling to pay the contractor's fees.
(3)  When the contractor bills DHS for reimbursement under the contract, the 
contractor's fees for services to eligible clients are not considered in 
determining the cost of services.
(4) Within two months after the end of the contract year, the contractor must 
report to DHS the amounts and sources of all fees collected for services funded 
by the program. The contractor must reimburse DHS for all fees collected in 
excess of the required match.
(d)  Documentation and billing. Each contractor must comply with all applicable 
DHS procedures and requirements for documenting and billing contracted services. 
DHS regional contract staff must explain these procedures and requirements to 
the contractor.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 24, 1992.
TRD-9201162
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: April 15, 1992
For further information, please call: (512) 450-3765