Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part III. Office of the Attorney General Chapter 55. Child Support Enforcement Subchapter A. General Guidelines 1 TAC sec.sec.55.1-55.5 The Office of the Attorney General adopts the repeal of sec.sec.55.1-55.5, concerning general guidelines, without changes to the proposed text as published in the March 20, 1992, issue of the Texas Register (17 TexReg 2055). Existing sec.sec.55.1-55.5 concern the general guidelines for the cooperation of the AFDC applicant/client in obtaining support, for the denial of AFDC grant amounts for failure to cooperate, and for the determination of good cause for refusing to cooperate. These provisions are not necessary for the operation of the Office of the Attorney General as the designated Title IV-D Child Support Enforcement agency for the State of Texas because the Texas Department of Human Services, the state's Title IV-A agency, makes the determination as to whether or not good cause exists for an AFDC applicant/recipient to refuse to cooperate in obtaining support. The repealed sections will be replaced by new sec.sec.55.1-55.5 which will make clear the authority and responsibility of the Office of the Attorney General of Texas in performing the services and functions required by federal and state law and to make clear the means by which the agency performs the required functions and services. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 76, which provides the Office of the Attorney General of Texas, as the state agency designated pursuant to Part D of Title IV of the federal Social Security Act (42 United States Code, sec.651 et seq), with the authority to perform the functions and provide the services (locating absent parents; establishing paternity; establishing, enforcing, reviewing, and modifying child support obligations; and collecting and distributing support payments) required by federal and state law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 4, 1992. TRD-9206091 Will Pryor First Assistant Attorney General Office of the Attorney General Effective date: May 25, 1992 Proposal publication date: March 20, 1992 For further information, please call: (512) 463-2040 The Office of the Attorney General adopts new sec.sec.55.1, 55.2, 55.3, 55.4, and 55.5, concerning general guidelines, without changes to the proposed text as published in the March 24, 1992, issue of the Texas Register (17 TexReg 2173). New sec.sec.55.1-55.5 provide general guidelines with respect to the requirement that all persons receiving child support enforcement services from the Office of the Attorney General, as the state's designated Title IV-D agency, must cooperate with the agency in identifying and locating absent parents, establishing paternity, establishing, enforcing or modifying child support obligations, including medical support, collecting and distributing child support payments, and in performing any other required IV-D function. New sec.55.1 states that all persons receiving child support services from the Office of the Attorney General must cooperate with the agency. New sec.55.2 states what action the agency will take if a custodial parent receiving child support services fails to cooperate. New sec.55.3 states that the Office of the Attorney General will terminate services on public assistance cases if the appropriate state agency finds that the recipient has good cause for failure to cooperate with the IV-D agency, unless the appropriate state agency determines that support enforcement may proceed without the participation of the caretaker or other relative. New sec.55.4 and sec.55.5 clarify the status of the Office of the Attorney General and the status of the lawyers employed by the Office of the Attorney General in performing the functions and providing the services which are required by federal law in Title IV-D of the Social Security Act and by the federal regulations in 45 Code of Federal Regulations, Parts 300-399, adopted by the Secretary of the United States Department of Health and Human Services regarding state Title IV-D child support enforcement programs. These new rules state that the Office of the Attorney General is a party to legal actions to carry out the purposes of Title IV-D of the Social Security Act and that attorneys employed by the Office of the Attorney General, as the designated IV-D agency, represent the agency and the State of Texas, or another state, and do not have an attorney-client relationship with any individual. Comments were received which endorsed the promulgation of the new rules as providing needed clarification of the role of the Office of the Attorney General in providing child support enforcement services pursuant to the requirements of Part D of Title IV of the federal Social Security Act as amended (42 United States Code sec.651 et seq). The State Board of Regional Judges made comments favoring the adoption of the new sections. No group or organization offered comments in opposition to the adoption of the sections. The new sections are adopted under Chapter 76, Human Resources Code, which provides the Office of the Attorney General of Texas, as the state agency designated pursuant to Part D of Title IV of the federal Social Security Act (42 United States Code, sec.651 et seq), with the authority to perform the functions and provide the services (locating absent parents; establishing paternity; establishing, enforcing, reviewing, and modifying child support obligations; and collecting and distributing support payments) required by federal and state law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 4, 1992. TRD-9206096 Will Pryor First Assistant Attorney General Office of the Attorney General Effective date: May 25, 1992 Proposal publication date: March 24, 1992 For further information, please call: (512) 463-2040 Subchapter B. Locate Services 1 TAC sec.55.32, sec.55.33 The Office of the Attorney General adopts the repeals of sec.55.32 and sec.55. 33, concerning locate services, without changes to the proposed text as published in the March 20, 1992, issue of the Texas Register (17 TexReg 2055). Current sec.55.32 is unnecessary for the operation of the Office of the Attorney General because the persons who may apply for child support services are determined by federal statutes and regulations. Current sec.55.33 does not fully and accurately state how, and by whom, access to the state parent locator service may be granted in parental kidnapping and child custody cases. The repeal of these provisions will make clear the authority and responsibility of the Office of the Attorney General of Texas in performing the services and functions required by federal and state law and make clear the means by which the agency performs the required functions and services. Currently sec.55.33 will be replaced by new sec.55.32 which will clarify how, and by whom, access to the state parent locator service may be granted in parental kidnapping and child custody cases. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 76, which provides the Office of the Attorney General of Texas, as the state agency designated pursuant to Part D of Title IV of the federal Social Security Act (42 United States Code, sec.sec.651 et seq), with the authority to perform the functions and provide the services (locating absent parents; establishing paternity; establishing, enforcing, reviewing, and modifying child support obligations; and collecting and distributing support payments) required by federal and state law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 4, 1992. TRD-9206092 Will Pryor First Assistant Attorney General Office of the Attorney General Effective date: May 25, 1992 Proposal publication date: March 20, 1992 For further information, please call: (512) 463-2040 Subchapter B. Locate Services 1 TAC sec.55.32 The Office of the Attorney General adopts new sec.55.32, concerning locate services, with changes to the proposed text as published in the March 24, 1992, issue of the Texas Register (17 TexReg 2174). New sec.55.32 clarifies how, and to whom, access to the State Parent Locator Service may be granted in parental kidnapping and child custody cases. New sec.55.32 limits the use of the State Parent Locator Service for parental kidnapping and child custody services, upon application and the payment of a required application fee, to those authorized persons specifically identified in the section. Comments were received offering the following changes to the text of the section: that the section make specific reference to the Parental Kidnapping Prevention Act of 1980, as amended; and that the phrase "any other official qualified as an authorized person under the [Parental Kidnapping Prevention] Act" be inserted in lieu of "the attorney general and staff" at the end of the section. These changes were suggested as clarification and not as changes in substance to the proposed rule, and the agency concurs. The Child Support Enforcement Division of the Office of the Attorney General made comments supporting the adoption of the section with the changes noted above. No organization or group made comments against the adoption of the section. The new section is adopted under Chapter 76, Human Resources Code, which provides the Office of the Attorney General of Texas, as the state agency designated pursuant to Part D of Title IV of the federal Social Security Act (42 United States Code, sec.651 et seq), with the authority to perform the functions and provide the services (locating absent parents; establishing paternity; establishing, enforcing, reviewing, and modifying child support obligations; and collecting and distributing support payments) required by federal and state law. sec.55.32. Parental Kidnapping and Child Custody Services. An applicant must apply pursuant to the Parental Kidnapping Prevention Act of 1989, as amended (the Act), for locate services for parental kidnapping and child custody determination through an authorized agent and pay the required fee. The State Parent Locator Services accepts applications for these services only from district judges, county attorneys, district attorneys, or any other official qualified as an authorized person under the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 4, 1992. TRD-9206097 Will Pryor First Assistant Attorney General Office of the Attorney General Effective date: May 25, 1992 Proposal publication date: March 24, 1992 For further information, please call: (512) 463-2040 Subchapter C. Enforcement 1 TAC sec.sec.55.61, 55.101, 55.102 The Office of the Attorney General adopts the repeal of sec.sec.55.61, 55.101, and 55.102, concerning enforcement, without changes to the proposal as published in the March 20, 1992, issue of the Texas Register (17 TexReg 2056). The repealed sections concern notice to persons receiving child support services regarding their case, the contesting of federal income tax refund intercept, and the contesting of reporting of past-due child support to credit reporting agencies. Currently sec.55.61 is unnecessary for the operation of the Office of the Attorney General because federal law already provides for persons receiving child support services to be informed of agency decisions regarding their cases. Current sec.55.102 does not accurately state current practice of the Office of the Attorney General in reporting the amounts of child support obligations to credit reporting agencies. The repeal of these provisions will make clear the authority and responsibility of the Office of the Attorney General of Texas in performing the services and functions required by federal and state law and make clear the means by which the agency performs the required functions and services. With the repeal of the existing provision at sec.55.61, current sec.55.101 will be renumbered sec.55.61 and will begin Subchapter C, "Enforcement," which will renamed "Administrative Review." Current sec.55.102 will be replaced be a new sec.55.103 which will provide the procedures for contesting the amount of child support being reported by the Office of the Attorney General to consumer credit reporting agencies. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 76, which provides the Office of the Attorney General of Texas, as the state agency designated pursuant to Part D of Title IV of the federal Social Security Act (42 United States Code, sec.651 et seq), with the authority to perform the functions and provide the services (locating absent parents; establishing paternity; establishing, enforcing, reviewing, and modifying child support obligations; and collecting and distributing support payments) required by federal and state law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 4, 1992. TRD-9206093 Will Pryor First Assistant Attorney General Office of the Attorney General Effective date: May 25, 1992 Proposal publication date: March 20, 1992 For further information, please call: (512) 463-2040 Subchapter C. Administrative Review 1 TAC sec.sec.55.101, 55.102, 55.103, 55.104, 55.105 The Office of the Attorney General adopts new sec.sec.55.101, 55.102, 55.103, 55.104, and 55.105 concerning Subchapter C, renamed "administrative review," without changes to the proposed text as published in the March 20, 1992, issue of the Texas Register (17 TexReg 2056). New sec.sec.55.101-55.105 provide for an administrative review for contested cases before the agency regarding collection of child support by interception of federal income tax refunds and the reporting of child support obligations to consumer credit reporting agencies. New sec.55.101 identifies the administrative procedures to be used, including informal resolution and a formal administrative review hearing, when a non- custodial parent contests the interception by the Office of the Attorney General of federal income tax refunds for the purpose of collecting past-due child support amounts or arrears. New sec.55.102 sets forth the criteria for reports by the Office of the Attorney General to consumer reporting agencies about child support obligations owed by non-custodial parents. New sec.55.103 defines the administrative procedures, including informal resolution and a formal administrative review hearing, to be followed when a non-custodial parent contests the amount of child support being reported by the Office of the Attorney General to consumer reporting agencies. New sec.55.104 sets forth rules governing the time periods for obtaining administrative review of agency actions in contested cases before the agency. New sec.55.105 states the regulation governing the proper address for submission of requests for administrative review of agency actions in contested cases and for mailing of agency decisions in contested cases. No comments were received regarding adoption of the new sections. The new sections are adopted under Chapter 76, Human Resources Code, which provides the Office of the Attorney General of Texas, as the state agency designated pursuant to Part D of Title IV of the federal Social Security Act (42 United States Code, sec.651 et seq), with the authority to perform the functions and provide the services (locating absent parents; establishing paternity; establishing, enforcing, reviewing, and modifying child support obligations; and collecting and distributing support payments) required by federal and state law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 4, 1992. TRD-9206098 Will Pryor First Assistant Attorney General Office of the Attorney General Effective date: May 25, 1992 Proposal publication date: March 20, 1992 For further information, please call: (512) 463-2040 Subchapter D. Forms For Child Support Enforcement 1 TAC sec.sec.55.111-55.119 The Office of the Attorney General adopts new sec.sec.55.111-55.119, concerning Subchapter D, designated forms for child support enforcement. Section 55.119 is adopted with changes to the proposed text as published in the March 20, 1992, issue of the Texas Register (17 TexReg 2059). Sections 55.111-55.118 are adopted without changes and will not be republished. New sec.sec.55.111-55.119 provide forms relating to the withholding child support from income and to child support liens, as well as other forms which the Office of the Attorney General is directed or authorized to promulgate for general use in enforcing and collecting child support. New sec.55.111 provides a "Notice of Delinquency" form, for use under the Texas Family Code, sec.14.44. New sec.55.112 provides a "Motion to Stay Issuance and Delivery of Writ of Income Withholding" form, for use under the Texas Family Code, sec.14.44(c). New sec.55.113 provides two related forms: "Writ of Income Withholding (To Employer)," for use under the Family Code, sec.14.45, revised to include a determination of arrears for purposes of the "Child Support Lien" under new Subchapter F of the Texas Family Code; and "Request for Issuance of Writ of Income Withholding," for use under the Texas Family Code, sec.14.45(a). New sec.55.114 provides two related forms: "Revised Writ of Income Withholding (To Employer)," for use under the Texas Family Code, sec.14.45, when the amounts to be withheld are reduced, as by emancipation of children or discharge of arrears included in the original writ; and "Request for Issuance of Revised Writ of Income Withholding," for use under the Texas Family Code, sec.14.45(f). New sec.55.115 provides a "Employer's Motion for Hearing on Applicability of Writ or Order" form, to request judicial review of applicability of either a writ or an order, since the procedure and elements of proof are the same for both, pursuant to the Texas Family Code, sec.14.43 and sec.14.45, Texas Family Code. New sec.55.116 provides a "Motion and Affidavit to Withdraw Writ of Income Withholding" form, for use under the Texas Family Code, sec.14.44(e). New sec.55.117 provides two related forms: "Notice to Terminate Writ of Income Withholding," for use to notify an employer to stop withholding under the Texas Family Code, sec.14.45(f); and "Request for Issuance of Notice to Terminate Writ of Income Withholding," for use under the Texas Family Code, sec.14.45(f). New sec.55.118 provides two related forms: "Employer's Order to Withhold Earnings for Child Support," a suggested form for the court order authorized by the Texas Family Code, sec.14.43; and "Request for Issuance of Order," to request that the clerk issue the employer's order pursuant to the Texas Family Code, sec.14.43. New sec.55.119 provides three related forms: "Notice of Child Support Lien," a suggested form for the Child Support Lien Notice authorized by Subchapter F, Chapter 14, Texas Family Code; "Release of Child Support Lien," a suggested form for a complete release and discharge of a child support lien; and "Partial Release of Child Support Lien," a suggested form for the partial release of child support lien as to particular property in accordance with the Texas Family Code, sec.14.976(b)(1). Comments were received, suggesting that the "Notice of Child Support Lien" form in sec.55.119(a) be modified to indicate more clearly that the name and address of the person to whom the payment of the child support arrearage should be made, are required in the blanks following the phrase "The arrears are payable to," immediately preceding the verification block. This information is required by the Texas Family Code, sec.14.973(a)(6). Authorized claimants are listed in the Texas Family Code, sec.14.971(b). This change was suggested as clarification and not as a change in substance to the proposed section, and the agency concurs. Comments supporting the adoption of sec.55.119(a) with the changes for clarification in the "Notice of Child Support Lien" form, noted previously, were made informally by members of the Texas Association of Domestic Relations Offices and by the Child Support Litigation Division of the Office of the Attorney General. No group or organization made comments in opposition to the adoption of the new sections. The new sections are adopted under the Human Resources Code, Chapter 76, which provides the Office of the Attorney General of Texas, as the state agency designated pursuant to Part D of Title IV of the federal Social Security Act (42 United States Code, sec.651 et seq), with the authority to perform the functions and provide the services (locating absent parents; establishing paternity; establishing, enforcing, reviewing, and modifying child support obligations; and collecting and distributing support payments) required by federal and state law. sec.55.119. Forms for Child Support Lien Notice, for Release of Child Lien Release, and for Partial Release of Child Support Lien. (a) The following form is to be filed with the county clerk of a county in which real or personal property of the obligor is believed to be located in accordance with Subchapter F, Chapter 14, Texas Family Code. Notice of the lien may be given to any person known to be in possession of real or personal property of the obligor, and if such notice is given the property may not be paid over, released, sold, transferred, encumbered or conveyed without incurring the penalties provided by the Texas Family Code, sec.14.981. [graphic] (b) The following form is to be filed with the county clerk of a county in which a child support lien has been filed when the payment in full of all child support, costs and attorney fees has been made. [graphic] (c) The following form is to be filed with the person in possession of property to which a child support lien has attached, when the payment in full of all child support, costs and attorney fees has not been made, but the claimant has agreed to release specific property to the obligor. [graphic] 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 May 4, 1992. TRD-9206099 Will Pryor First Assistant Attorney General Office of the Attorney General Effective date: May 25, 1992 Proposal publication date: March 20, 1992 For further information, please call: (512) 463-2040 Subchapter F. Collections and Distribution 1 TAC sec.sec.55.121-55.123 The Office of the Attorney General adopts the repeal of sec.sec.55.121-55.123, concerning collections and distribution, without changes to the proposal as published in the March 20, 1992, issue of the Texas Register (17 TexReg 2080). Current sec.sec.55.121-55.123 concern the removal of children from the AFDC grant and the recovery of child support directly paid to, and retained by, an AFDC recipient. These sections are not necessary for the operation of the Office of the Attorney General because federal law determines how to deal with the issue of AFDC recipients who receive and retain direct payments of child support. The repeal of these provisions will make clear the authority and responsibility of the Office of the Attorney General of Texas in performing the services and functions required by federal and state law and to make clear the means by which the agency performs the required functions and services. No comments were received regarding adoption of the repeals. The repeals are adopted under the Human Resources Code, Chapter 76, which provides the Office of the Attorney General of Texas, as the state agency designated pursuant to Part D of Title IV of the federal Social Security Act (42 United State Code, sec.sec.651 et seq), with the authority to perform the functions and provide the services (locating absent parents; establishing paternity; establishing, enforcing, reviewing, and modifying child support obligations; and collecting and distributing support payments) required by federal and state law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 4, 1992. TRD-9206094 Will Pryor First Assistant Attorney General Office of the Attorney General Effective date: May 25, 1992 Proposal publication date: March 20, 1992 For further information, please call: (512) 463-2040 1 TAC sec.55.140 The Office of the Attorney General adopts new sec.55.140 concerning collections and distribution, without changes to the proposed text as published in the March 20, 1992, issue of the Texas Register (17 TexReg 2081). New sec.55.140 provides procedures required by federal law. New sec.55.140 identifies procedures to be used in resolving contested cases before the agency regarding distribution of child support collections in public assistance cases. No comments were received regarding adoption of the new section. The new section is adopted under Chapter 76, Human Resources Code, which provides the Office of the Attorney General of Texas, as the state agency designated pursuant to Part D of Title IV of the federal Social Security Act (42 United States Code, sec.651 et seq), with the authority to perform the functions and provide the services (locating absent parents; establishing paternity; establishing, enforcing, reviewing, and modifying child support obligations; and collecting and distributing support payments) required by federal and state law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 4, 1992. TRD-9206100 Will Pryor First Assistant Attorney General Office of the Attorney General Effective date: May 25, 1992 Proposal publication date: March 20, 1992 For further information, please call: (512) 463-2040 TITLE 4. AGRICULTURE Part II. Texas Feed and Fertilizer Control Service Chapter 61. Feed General Provisions 4 TAC sec.61.1 The Texas Feed and Fertilizer Control Service adopts an amendment to sec.61. 1, concerning definitions, without changes to the proposed text as published in the April 3, 1992, issue of the Texas Register (17 TexReg 2367). The section is revised to delete restrictive mailing address. The amendment provides definitions used later in the rules. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 141, sec.141.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules as necessary for the enforcement of this chapter following notice and public hearing. 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 College Station, Texas, on May 4, 1992. TRD-9206227 George W. Latimer, Jr. Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: May 26, 1992 Proposal publication date: April 3, 1992 For further information, please call: (409) 845-1121 Inspection, Sampling, and Analysis 4 TAC sec.61.41 The Texas Feed and Fertilizer Control Service adopts amendment to sec.61.41, concerning sampling and analytical procedures, without changes to the proposed text as published in the April 3, 1992, issue of the Texas Register (17 TexReg 2368). The amendment removes restrictive mailing addresses. The amendment clarifies text. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 141, sec.141.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules as necessary for the enforcement of this chapter following notice and public hearing. 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 College Station, Texas, on May 4, 1992. TRD-9206148 George W. Latimer, Jr. Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: May 26, 1992 Proposal publication date: April 3, 1992 For further information, please call: (409) 845-1121 Penalties 4 TAC sec.61.61 The Texas Feed and Fertilizer Control Service adopts an amendment to sec.61. 61, concerning poisonous or deleterious substances: specific levels of aflatoxin above 20 ppb as adulterants, without changes to the proposed text as published in the April 3, 1992, issue of the Texas Register (17 TexReg 2368). The amendment defines aflatoxin levels above 20 ppb as a poisonous or deleterious substance and deletes "for ruminants only" as being redundant. By defining aflatoxin levels above 20 ppb as poisonous or deleterious, the amendment strengthens the service's ability to act quickly against products containing these materials. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 141, sec.141.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules as necessary for the enforcement of this chapter following notice and public hearing. 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 College Station, Texas, on May 4, 1992. TRD-9206149 George W. Latimer, Jr. Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: May 26, 1992 Proposal publication date: April 3, 1992 For further information, please call: (409) 845-1121 Appeals and Rehearings 4 TAC sec.61.85 The Texas Feed and Fertilizer Control Service adopts new sec.61.85, concerning appeals and rehearings, without changes to the proposed text as published in the April 3, 1992, issue of the Texas Register (17 TexReg 2368). The new section defines the time limits for appeal which were previously ambiguous. The new section clarifies procedure. The new section is adopted under the Texas Agriculture Code, Chapter 141, sec.141.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules as necessary for the enforcement of this chapter following notice and public hearing. 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 College Station, Texas, on May 4, 1992. TRD-9206150 George W. Latimer, Jr. Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: May 26, 1992 Proposal publication date: April 3, 1992 For further information, please call: (409) 845-1121 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter U. General Provisions 16 TAC sec.5.4 The Railroad Commission of Texas adopts an amendment to sec.5.4, concerning definitions, with changes to the proposed text as published in the March 24, 1992, issue of the Texas Register (17 TexReg 2174). The amendment brings sec.5.4(a)(4) into conformity with the legislative amendments to Texas Civil Statutes, Article 911b, sec.1a(1), which provide exceptions to the definition of the terms "motor carrier" and "contract carrier. " The amendment adds several exceptions to the definition of the terms "motor carrier" and "contract carrier," including persons or companies transporting: mobile classrooms or simulator driver education units; certain property for members of a corporate family; United States Department of Agriculture commodities; and permanent buildings or housing structures not designed to be transported over the highway. No comments were received regarding the proposed amendment. The only changes made to the proposed rule are the elimination of the term "USDA" and parentheses in subparagraph (I). The amendment is adopted under the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b, sec.1a(1), which provides for exceptions to the definition of the terms "motor carrier" and "contract carrier." sec.5.4. Definitions. (a) The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1)-(3) (No change.) (4) Contract carrier-Any motor carrier as hereinabove defined transporting property for compensation or hire over any highway in this state other than as a common carrier. Provided, however, that the term "motor carrier" and the term "contract carrier" as defined in preceding subsections shall not be held to include the following: (A)-(F) (No change.) (G) any person or company while engaged in transporting a mobile classroom or simulator driver education unit from one school district to another school district under contract between an education service center and a school district or districts; provided, however, that such person or company shall have first filed with the contracting agency certificates of insurance covering each motor vehicle to be used in such transportation with public liability and property damage insurance in the amounts required by law and by the contracting agency; (H) the transportation by motor vehicle for compensation by a member of a corporate family, as hereinafter defined, for other members of such corporate family of property which one member of the corporate family leases for use in its primary business, or of which one member of the corporate family is, or will become upon delivery, the bona fide owner, manufacturer, or producer, and which is produced, manufactured, or distributed as part of such corporate family member's primary business, other than a transportation business. Provided, however, that before engaging in the transportation, the parent corporation shall file with the commission certificates of insurance covering each motor vehicle to be used in the transportation with public liability and property damage insurance in the amounts required by the commission for motor vehicles subject to its regulation and a notice of intent to provide the transportation together with a list of the subsidiaries involved and an affidavit that the parent corporation owns directly or indirectly a 100% interest in each of the participating subsidiaries. The notice required by this section shall be in a form prescribed by the commission, and a copy of the notice shall be carried in the cab of all vehicles conducting the transportation. In this subsection, "corporate family" means a group of corporations consisting of a parent corporation and all subsidiaries in which the parent corporation owns directly or indirectly a 100% interest. Any corporation electing to engage in the transportation authorized hereunder shall be deemed to have given its consent to allow authorized employees or representatives of the commission to inspect the books and records of all members of the corporate family engaging in such transportation provided other members of the corporate family are in strict conformity with the provisions hereof; or (I) a person or company while engaged exclusively in transporting donated United States Department of Agriculture commodities under contract with a state agency; or (J) any person transporting a permanent building or housing structure that does not have a wheeled undercarriage and was not designed to be transported over a highway. (5)-(20) (No change.) (b) (No change.) 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 May 4, 1992. TRD-9206183 Lena Guerrero Chairman Railroad Commission of Texas Effective date: May 26, 1992 Proposal publication date: March 24, 1992 For further information, please call: (512) 463-7095 Part IV. Texas Department of Licensing and Regulation Chapter 67. Auctioneers 16 TAC sec.67.90, sec.67.94 The Texas Department of Licensing and Regulation adopts amendments to sec.67. 90 and sec.67.94, concerning auctioneers, without changes to the proposed text as published in the April 21, 1992, issue of the Texas Register (17 TexReg 2844). The amendments simplify and clarify existing sections. The sections will function the same. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 8700, which provide the Texas Department of Licensing and Regulation with the authority to regulate auctioneers. 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 May 5, 1992. TRD-9206190 Jack Garison Acting Executive Director Texas Department of Licensing and Regulation Effective date: May 26, 1992 Proposal publication date: April 3, 1992 For further information, please call: (512) 463-3127 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 9. Exploration and Leasing of Oil and Gas 31 TAC sec.sec.9.4, 9.5, 9.8 The General Land Office adopts amendments to sec.9.4, 9.5, and 9.8, concerning geophysical and geochemical exploration permits, leasing state property for oil and gas, and discontinuing the leasehold relationship, without changes to the proposed text as published in the March 31, 1992, issue of the Texas Register (17 TexReg 2331). The amendments correct several references to the General Land Office fee schedule. As adopted, the amendments will insure that the fee schedule is referenced correctly. No comments were received regarding adoption of this amendments. The amendments are adopted under the Natural Resources Code, sec.31.051, which authorizes the commissioner to make and enforce rules consistent with the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 1, 1992. TRD-9206180 Garry Mauro Commissioner General Land Office Effective date: May 26, 1992 Proposal publication date: March 31, 1992 For further information, please call: (512) 463-5394 Chapter 10. Exploration and Development of State Minerals Other than Oil and Gas 31 TAC sec.sec.10.2, 10.3, 10.5, 10.8, 10.9 The General Land Office adopts amendments to sec.10.2, 10.3, 10.5, 10.8, and 10.9, concerning prospect permits on state lands, mining leases on properties subject to prospect, mining leases on Relinquishment Act lands, assignments, releases, reports, royalty payments, inspections, forfeitures, and reinstatements, and mineral awards and patents, without changes to the proposed text as published in the March 27, 1992, issue of the Texas Register (17 TexReg 2247). The amendments will correct references to the current fee schedule. As adopted, the amendments will insure that all references to the General Land Office fee schedule are accurately referenced. No comments were received regarding adoption of the amendments. The amendments are adopted under the Natural Resources Code, sec.31.051, which authorizes the commissioner to make and enforce rules consistent with the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 1, 1992. TRD-9206182 Garry Mauro Commissioner General Land Office Effective date: May 26, 1992 Proposal publication date: March 27, 1992 For further information, please call: (512) 463-5394 Chapter 13. Land Resources Rules, Practices and Procedures for Land Leases and Trades 31 TAC sec.13.1 The General Land Office adopts an amendment to sec.13.1, concerning leases, without changes to the proposed text as published in the March 27, 1992, issue of the Texas Register (17 TexReg 2248). The amendment corrects references to the General Land Office fee schedule. As adopted, this amendment will increase readability and insure that the fee schedule is referenced correctly. No comments were received regarding adoption of the amendment. The amendment is adopted under the Natural Resources Code, sec.31.051, which authorizes the commissioner to make and enforce rules consistent with the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 1, 1992. TRD-9206181 Garry Mauro Commissioner General Land Office Effective date: May 26, 1992 Proposal publication date: March 27, 1992 For further information, please call: (512) 463-5394 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter V. Franchise Tax 34 TAC sec.3.559 The Comptroller of Public Accounts adopts new sec.3.559, concerning earned surplus: temporary credit, with changes to the proposed text as published in the December 27, 1991, issue of the Texas Register (16 TexReg 7715). The new section sets out guidelines for the temporary credit pursuant to the Tax Code, sec.171.111. No written comments were received regarding adoption of the new section. However, there were some clarification changes made based on oral comments received. Subsections (b)(1), (4)(C) (subsection (b)(5)(C) in the proposed version), (e) (2), and (f)(2) were changed to make the terminology used in the section consistent. Subsections (b)(4) (subsection (b)(5) in the proposed version) and (e)(1) were changed to eliminate the requirement that a taxpayer use accounting methods required under the franchise tax statute in calculating timing differences. As a result of this change, subsection (b)(4) was deleted as unnecessary and subsection (b)(5) was relettered. Subsection (e)(2) was changed to clarify that the amount subject to the credit was the excess of qualifying net assets under generally accepted accounting principles over the basis of qualifying net assets for federal income tax purposes. Subsection (b)(4)(A) ((b)(5)(A) in the proposed version) was also changed to clarify that generally accepted accounting principles are used in the calculation of the credit. Subsection (f) was revised to clarify that the provision relates to revocation of the election of the temporary credit. The reference to accounting method changes was also deleted. Subsection (g) was added to permit taxpayers who had made changes in accounting methods to take advantage of the temporary credit on the first report due on or after January 1, 1992. These taxpayers would otherwise be unable to elect the credit on such report because of the required accounting methods. The final subsection was relettered. The new section is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. sec.3.559. Earned Surplus: Temporary Credit. (a) Provisions. The provisions of this section apply to franchise tax reports originally due after January 1, 1992. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Accounting methods-The method of allocating the cost, benefit, or expense of an asset or liability to accounting periods. For purposes of the credit under sec.171.111, the accounting method used to calculate the timing difference under the Tax Code, sec.171.111, must be in accordance with GAAP. A change in accounting method includes the method used to allocate asses and liabilities to accounting periods or changes in estimates used in calculating the amount of the timing difference under the Tax Code, sec.171 111(b) (1). The disposition of an asset or liability through a sale, trade, abandonment, or other similar situation is not considered a change in an accounting method. (2) Correction of an error-For purposes of computing timing differences under this section, the correction of an error resulting from mathematical mistakes, mistakes in the application of accounting principles, or an oversight or unintentional misuse of facts that existed on the computation date. (3) Generally accepted accounting principles (GAAP) -For the purposes of this title, unless the context clearly requires otherwise, GAAP means those broad rules of accounting formally accepted by the American Institute of Certified Public Accounts (AICPA) or its designees through publication of a statement, opinion, interpretation, research bulletin, and the like. (4) Timing differences-Temporary differences as defined in Statement of Financial Accounting Standards Number 96 (SFAS 96) as amended effective January 1, 1992, which will reverse at some future date. (A) Events and transactions which do not result in differences between the basis of an asset or liability for financial and income tax purposes do not qualify as timing differences even if a provision for income tax is required under generally accepted accounting principles. (B) A timing difference is considered to reverse at some future date if such difference results in income, deductions, expenses, or credits for financial accounting or federal income tax purposes which offset the difference in basis in future accounting years. Differences whose reversal are under the control of the taxpayer do not qualify as timing differences. (C) For the purposes of this section, deferred investment tax credits, allowance for funds used during construction, and basis differences for which tax provisions are not required under SFAS 96, as amended effective January 1, 1992, do not qualify as timing differences. (c) Notice of intent. (1) The notice of intent to preserve the right to claim the temporary credit under the Tax Code, sec.171.111, must be submitted to the comptroller on forms specified by the comptroller. The form must be filed on or before March 2, 1992 (because March 1, 1992, falls on a Sunday). The postmark date (or meter-mark date, if there is no postmark) on the envelope in which the form is received determines the date of filing. (2) The corporation must submit with the notice of intent the amount of timing differences determined under the Tax Code, sec.171.111(b)(1). The amount of such differences may be estimated if no final determination of such amount is available at the date of filing of the notice of intent. Although corrections of errors (as defined in this section) in calculating such timing differences may be made on reports within the period of limitations, changes in accounting methods will not be considered a correction of an error in calculating such differences. The corporation will be liable for any applicable penalty and interest if the amount of timing differences determined results in an underpayment of tax. (3) The preservation of the right to claim the credit may not be conveyed, assigned, or transferred to another entity. (d) Electing the credit. (1) The election to claim the credit is a one-time election. If the election is revoked, the credit may not be claimed on any reports originally due on or after the date the election is revoked. (2) A corporation elects the credit by: (A) properly taking the credit in computing the tax on earned surplus and paying the additional tax due under the Tax Code, sec.171. 111(h), on a report filed on or before the original due date; or (B) electing the credit on a timely filed extension request and complying with the requirements of subparagraph (A) of this paragraph on the report filed on or before the extended due date of the report. (3) If a corporation elects the credit on a report on which the corporation was ineligible for the credit based on the provisions of this section or the Tax Code, Chapter 171, the corporation is treated as though the election was not made. The corporation will be liable for any applicable penalty and interest for underpayment of tax. (4) The allowable credit on reports due within the limitation period as specified in sec.3.571 of this title (relating to Statute of Limitations) is subject to adjustment even if the initial election to take the credit is outside the period of limitations under sec.3.571 of this title. (e) Computation of the credit. (1) If the credit under the Tax Code, sec.171.111, is claimed, the corporation is required to use the GAAP method in computing taxable capital. In other words, the corporation may not use the federal income tax method in whole or in part in computing taxable capital. (2) The amount subject to the credit determined under the Tax Code, sec.171.111(b)(1), is the excess of the basis of qualifying assets minus liabilities in accordance with generally accepted accounting principles over the basis of qualifying assets minus liabilities for federal income tax purposes as of the accounting year end in 1991. Amounts not allowed as timing differences under this section or Tax Code, sec.171.111, shall be excluded from the computation of the amount subject to credit. The corporation must include all assets and liabilities in computing the credit under the Tax Code, sec.171.111 (i.e., the corporation can not compute the differences for only certain assets and/or liabilities). (f) Revocation of the election. The election to claim the credit under the Tax Code, sec.171.111, is revoked at the earliest of the following occurrences: (1) after making a valid election: (A) the corporation notifies the comptroller in writing that the election is revoked; (B) the corporation fails to claim the credit on a subsequent report or fails to report the additional tax due under the Tax Code, sec.171.111(h), on a subsequent report; or (C) the corporation uses the federal income tax method in reporting taxable capital; or (2) when calculating taxable capital, the corporation changes the accounting method for any asset or liability used in determining the timing differences under the Tax Code, sec.171.111(b)(1); or (3) the corporation is the nonsurvivor of a merger or consolidation or the corporation terminates its existence for any other reason. (g) Changes in accounting methods. A corporation, otherwise precluded from changing accounting methods under the Tax Code, sec.171.109, may change accounting methods on its first report due on or after January 1, 1992, to the methods used to account for qualifying assets and liabilities on its financial statements for the accounting year ended in 1991, if the timing differences computed under the Tax Code, sec.171.111(b)(1), are based on the methods used on such 1991 financial statements. A corporation that changes methods under this section is considered to have made a change in accounting methods for purposes of the Tax Code, sec.171.109. For the purposes of this section, other changes in accounting methods for qualifying assets and liabilities are allowed only with the written consent of the comptroller. (h) Temporary credit. The temporary credit is not available when computing the additional tax under the Tax Code, sec.171.0011. 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 May 5, 1992. TRD-9206186 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: May 26, 1992 Proposal publication date: December 27, 1992 For further information, please call: (512) 463-4028 Subchapter CC. Waste Tire Recycling Fee 34 TAC sec.3.721 The Comptroller of Public Accounts adopts new sec.3.721, concerning collection and reporting requirements, without changes to the proposed text as published in the March 3, 1992, issue of the Texas Register (17 TexReg 1599). Senate Bill 1340, adopted by the 72nd Legislature, 1991, and amended by Senate Bill 2, adopted in the First Called Session, requires the comptroller to administer and enforce the collection of the waste tire recycling fee beginning January 1, 1992, imposed on the wholesale or retail sale of new tires not sold for resale. This new section provides for the collection and reporting of the fee. The effective date of the legislation is January 1, 1992. comments were receive from the Texas Association of Business in Austin. The Association felt that the comptroller's definition of "sale for resale" in the new section was contrary to the intent of the legislature. It was the position of the Association that the fee should not be assessed on manufacturers purchasing tires for installation on vehicles and trailers being manufactured for sale. The comptroller declined to make the requested changes to the "sale for resale" definition in the section, stating that legislative intent had been confirmed before the section was proposed. The new section is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. 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 May 5, 1992. TRD-9206187 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: May 26, 1992 Proposal publication date: March 3, 1992 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part XI. Texas Juvenile Probation Commission Chapter 345. Texas Juvenile Probation Commission 37 TAC sec.345.1, sec.345.2 The Texas Juvenile Probation Commission adopts new sec.345.1 and sec.345.2, concerning the allocation, program description, and requirements for its community corrections line item. Section 345.2 is adopted with changes to the proposed text as published in the March 24, 1992, issue of the Texas Register (17 TexReg 2201). Section 345.1 is adopted without changes and will not be republished. These rules establish the allocation, program description, and requirements for TJPC's community corrections line item. The modifier "delinquent" was inadvertantly omitted from sec.345.2(h)(3) when it was proposed. This word is now included. The rules adopt a formula that distributes available funds to juvenile boards based on a weighted population formula. The juvenile boards will spend their allocations in accord with their community corrections plans. These plans are designed to reduce commitments to the Texas Youth Commission and increase the rate of successful completions of direct diversion placements, successful intensive supervision probation completions, and successful probation completions. The rules' formula allots funds to both rural and rural juvenile boards. One commenter believed the formula allocates too much money to rural areas, at the expense of urban centers and to the detriment of the programs operated by the Texas Youth Commission. Other commenters believed the formula allocates too much money to urban centers at the expense of rural areas. One commenter questioned the agency's statutory authority to make the allocation called for in the rule. The agency found it had statutory authority to allocate these funds as established in these rules. It believes the compromise between urban and rural juvenile boards expressed in the rules is the fairest allocation under the circumstances. The new sections are adopted under the Texas Human Resources Code, sec.141.002, which provides the Texas Juvenile Probation Commission with the authority to adopt standards for the operation of a juvenile board that are necessary to provide adequate and effective probation services. sec.345.2. Purpose. (a) This rule establishes the allocation of community corrections assistance funds to the juvenile boards. (b) TJPC provides funding through a weighted population formula using the juvenile age population. From the total appropriation: (1) TJPC pays each juvenile board that operates a department a base rate equal to $10 for each person in the juvenile age population not to exceed $75,000; (2) TJPC sets aside $300,000 for diversion placements made by juvenile courts from juvenile boards with juvenile age populations of less than 2,000; (3) TJPC reserves $1 million to fund innovative and creative programs to be developed by the juvenile boards, and approved for funding by TJPC; and to provide reward funds for juvenile boards that have commitment rates that are consistently below the state's commitment rate; (4) TJPC reserves $100, 000 for evaluation and research projects to be conducted by TJPC; and (5) TJPC pays its proportional share of $681,000 to each juvenile board with more than l00,000 persons in its juvenile age population; and TJPC allocates the remainder of the community corrections assistance fund according to each juvenile boards' percentage of the state's juvenile age population. (c) Each juvenile board must develop a community corrections plan that sets out the residential and non-residential programs and services it will develop with these funds to meet or exceed its performance targets for successful probation and intensive supervision probation completions, successful completions of direct diversion placements, and recommendations for Texas Youth Commission (TYC) commitments. The plan must include, but is not limited to, a description of: (1) the juvenile board's existing diversionary programs; (2) the internal and external variables which may impact the juvenile boards's ability to meet performance targets; (3) the programs and services the juvenile board will provide, which include a description of the target population, and the resources needed to accomplish the plan; (4) what internal procedures the juvenile board will use to measure the number and rate of recommendations for commitments to TYC; the rate of successful completions of direct diversion placements; the rate of successful intensive supervision probation completions; and the rate of successful probation completions; (5) the policies and procedures the juvenile board will implement or enhance to meet or exceed performance targets for recommendations for commitments to TYC; and for the rates of successful completions of direct diversion placements, of intensive supervision probation completions, and of probation completions; (6) the juvenile board's budget for each program area that will use community corrections assistance funds; and (7) the juvenile board's five-year goal statement for community corrections program services. (d) TJPC must receive the juvenile board's community corrections plan by June l of each year. (e) By July 1 of each year, TJPC will notify each juvenile board that has submitted a plan of any need for modification. TJPC will notify each juvenile board that has submitted an acceptable plan of the plan's acceptance by August 1 of each year. (f) TJPC will conduct an annual performance review to assess the extent of each juvenile board's successful compliance with performance targets. Any juvenile board that does not meet planned goals will receive technical assistance from TJPC. If the TJPC staff determines a juvenile board has failed to reach its performance targets, and finds there are no mitigating factors to excuse the failure, the staff will recommend that the TJPC board reduce the juvenile board's community corrections assistance funds allocation. After hearing from the staff and the juvenile board, the TJPC board will decide the amount of the reduction, if any. (g) TJPC sets the rate of successful completions of direct diversion placements performance target at 60% for each juvenile board. TJPC sets the rate of successful intensive supervision probation completions performance target at 65% for each juvenile board. TJPC sets the rate of successful probation completions performance target at 84% for each juvenile board. (h) TJPC determines the commitment performance target for each juvenile board based on the board's average number of commitments to TYC for the years 1988- 1991. The commitment performance target begins at a 10% reduction of this average, but the reduction may increase, depending on the juvenile board's past performance, measured in three ways: (l) if 75% or less of a juvenile board's commitments for 1991 were within the ideal criteria for commitment, then two percentage points are added to the juvenile board's percent reduction; (2) if a juvenile board's actual average number of commitments in the years 1988-l991 is greater than the number derived when the whole state's average number of commitments for 1988-l991 is multiplied by the juvenile board's percent of the state's juvenile age population, then two percentage points are added to the juvenile board's percent reduction; and (3) if a juvenile board's average number of commitments for the years 1988-1991 is more than 3.0% of its average number of delinquent referrals for those years, then one and one-half percentage points are added to the juvenile board's percent reduction. (i) The following expenditures are allowable. (1) Community corrections assistance funds may be expended only for direct services for juveniles. These are limited only to: (A) staff services including salaries and fringe benefits for staff employed by the juvenile board or boards to perform activities directly related to improving the rate of successful probation and intensive supervision probation completions, improving the rate of successful completions of direct diversion placements, and reducing the rate of TYC commitments, reimbursement for travel expenses incurred by employees during the performance of their duties, operating expenses, staff training costs, and audit costs; (B) non-residential services, including professional diagnostic and treatment services, medical and dental services, vocational and educational services, transportation and meals, clothing and personal hygiene supplies, and other non- residential services related to increasing the rate of successful probation and intensive supervision probation completions, increasing the rate of successful completions of direct diversion placements, and reducing the rate of TYC commitments, as approved by TJPC; and (C) residential services provided by the juvenile board or purchased at rates that do not exceed those established for levels of care by the Health and Human Services Coordinating Council. (2) Community corrections assistance funds may not be used for capital expenditures. (3) Community corrections assistance funds may not be used to supplant existing services. A reduction in local funding from the preceding fiscal year may result in some reduction in community corrections assistance funds. 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 May 1, 1992. TRD-9206095 Bernard Licarione, Ph.D. Executive Director Texas Juvenile Probation Commission Effective date: May 25, 1992 Proposal publication date: March 24, 1992 For further information, please call: (512) 443-2001 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 19. Long-Term Care Nursing Facility Requirements for Licensure and Medicaid Certification Subchapter G. Resident Assessment 40 TAC sec.19.604 The Texas Department of Human Services (DHS) adopts an amendment to sec.19. 604 concerning resident assessment, with changes to the proposed text as published in the January 28, 1992, issue of the Texas Register (17 TexReg 672). The justification for the amendment is to allow residents of a nursing facility to transfer from one facility to another facility without a new preadmission screening and annual resident review (PASARR), before admission to the new facility. In addition, residents are allowed to go into an acute care hospital for any length of time and return to a facility without a new PASARR. The amendment will function by allowing nursing facility residents to transfer from one facility to another without losing their benefits under the Omnibus Reconciliation Act of 1987 (0BRA '87) and without jeopardizing their entitlement to nursing facility care. During the public comment period, DHS received comments from the United Cerebral Palsy Association of Texas and Advocacy, Incorporated. A summary of the comments and DHS's responses to the comments follows. Comment: One commenter recommended that the rule specify that individuals who transfer from one facility to another retain all of their benefits under OBRA '87. Response: Individuals who transfer from one facility to another are considered readmissions, upon arrival at their new facility. As stipulated in the OBRA Procedures Manual, these individuals retain all of their OBRA benefits. DHS is adopting the rule with a change in subsection (a) to expand the definition of readmission. Comment: One commenter recommended that residents who allege abuse, neglect, or exploitation be allowed to transfer from the facility and retain any entitlements. Response: These individuals may transfer just as any other individual who had already met the PASARR requirements. DHS believes this is stated clearly in subsection (c) of the rule. Also during the comment period, the Health Care Financing Administration (HCFA) published State Medicaid Manual Transmittal Number 76 which mandates the following changes to current PASARR requirements: current nursing facility residents are now allowed to be readmitted to a facility from a hospital regardless of the time spent in the hospital setting; and nursing facility residents are now allowed to transfer from one facility to another without being subject to a new PASARR. DHS is adopting the rule with changes to incorporate these mandated policies. The amendment is adopted 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.19.604. Preadmission Screening and Annual Resident Review (PASARR). (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1)-(14) (No change.) (15) New admission-An individual who is admitted to any nursing facility in which he has not recently resided and to which he cannot qualify as a readmission. (16)-(23) (No change.) (24) Readmission-An individual who is readmitted to a nursing facility in which he has resided following a temporary absence for acute care hospitalization or for therapeutic leave. (25)-(29) (No change.) (b) Preadmission screenings. (1)-(2) (No change.) (3) Readmissions. The following individuals are not subject to preadmission screenings: (A)-(B) (No change.) (C) residents who: (i) transfer from their current nursing facility residence to a new nursing facility residence; (ii) have not had any intervening days of continuous nursing facility residence other than for acute care hospitalization; (iii) have not had any change in their mental condition; and (iv) have met the PASARR requirements as: (I) stipulated in this section in their current nursing facility residence; and (II) documented in their DHS CARE form and PASARR determination notification letter. (4)-(5) (No change.) (c)-(g) (No change.) 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 May 5, 1992. TRD-9206176 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: June 1, 1992 Proposal publication date: January 28, 1992 For further information, please call: (512) 450-3765 Chapter 79. Legal Services Subchapter U. Fraud Involving Recipients 40 TAC sec.sec.79. 2001, 79.2003, 79.2009, 79.2011 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.79. 2001, 79.2003, 79.2009, and 79.2011. The amendments to sec.79.2001, 79.2003, and sec.79.2011 are adopted with changes to the proposed text as published in the March 27, 1992, issue of the Texas Register (17 TexReg 2256). The amendment to sec.79.2009 is adopted without changes and will not be republished. The justification for the amendments is to make DHS's investigation and disposition of Aid to Families with Dependent Children (AFDC) fraud cases consistent with its established procedure for processing Food Stamp Program violations. The amendments will enable DHS to conduct administrative disqualification hearings in cases of AFDC Program violations in the same way it currently does in food stamp cases. The amendments will function by providing for a net savings in tax dollars resulting from disqualification of persons found guilty of committing intentional program violations. No comments were received regarding adoption of the amendments. However, DHS is adopting sec.79.2001(e) and sec.79.2003(b) and (e) with changes necessary to clarify that disqualification from the AFDC Program occurs if the overissuance of benefits resulting from an intentional violation occurred in the month of October 1988 or later. The proposal erroneously stated that, in regard to claims, the overissuance must have occurred in a month prior to November 1, 1988. In addition, DHS is adopting sec.79.2001 and sec.79.2011(i)(2) with a number of minor editorial changes. The amendments are adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. sec.79.2001. Terms and General Policy. (a) Food stamp, medical assistance, and financial assistance are indicated when the term "assistance" is used in this subchapter. Medical assistance, Aid to Families with Dependent Children (AFDC), and food stamp intentional program violations are not given special treatment except if specific procedural distinctions are noted. (b) A household member has committed a Food Stamp intentional program violation if he has intentionally: (1) made a false and misleading statement; (2) misrepresented, concealed, or withheld facts; or (3) violated any provision of the Food Stamp Act, the Food Stamp Program regulations, or related state statutes in order to use, present, transfer, acquire, receive, or possess food stamp coupons or food stamp Authorizations to Participate (ATPs). (c) An AFDC intentional program violation has occurred if a recipient has intentionally, for the purpose of establishing or maintaining the family's eligibility for AFDC or for increasing or preventing a reduction in the amount of the grant: (1) (No change.) (2) misrepresented, concealed, or withheld facts, or represented a falsehood to be a fact; or (3) (No change.) (d) A household member may be charged with an intentional program violation even if he has not actually received benefits to which he is not entitled. (e) DHS does not include as part of a claim any overissuance made prior to six years before the overissuance is discovered. (f) In food stamp and AFDC intentional violation proceedings against individuals, actions under either the Food Stamp or AFDC Programs will be coordinated with the actions under the other, to the extent possible. sec.79.2003. Determination and Disposition of Intentional Program Violations. (a) The Texas Department of Human Services (DHS) determines the existence of intentional program violations; refers cases for investigation, administrative hearings, and prosecution; takes collection action, and ensures clients' rights according to applicable Texas criminal statutes and the following: (1) Aid to Families with Dependent Children (AFDC) Program -45 Code of Federal Regulations, sec.sec.233.20(a)(13)(B), 235.110, 235. 112, and 235.113. (2)-(3) (No change.) (b) Individuals found to have committed an intentional program violation in the Food Stamp and/or AFDC Programs either through an administrative disqualification hearing or by a court of appropriate jurisdiction, or who have signed a waiver of right to an administrative disqualification hearing, or on the basis of a plea of guilty or nolo contendere or otherwise in cases referred for prosecution in a state or federal court are ineligible to participate in the program for six months for the first violation, 12 months for the second violation, and permanently for the third violation. In AFDC cases, DHS does not take the needs of the disqualified individual into account during the period he is disqualified when determining the assistance unit's need and amount of assistance. DHS considers any resources and income of the disqualified individual as available to the assistance unit. DHS does not disqualify an individual from the AFDC Program unless the overissuance of benefits resulting from the intentional violation occurred in the month of October 1988 or later. (c) Disqualified individuals are ineligible for AFDC Medicaid benefits during the disqualification period. However, they may qualify for and receive benefits under provisions of Chapter 2 of this title (relating to the Medically Needy Program) or under provisions of Chapter 4 of this title (relating to the Medical Programs for Children and Pregnant Women). (d) A household member may be charged with an intentional program violation even if he has not actually received benefits to which he is not entitled. (e) The amount of the intentional program violation claim must be calculated back to the month the act of intentional program violation occurred, regardless of the length of time that elapsed until the determination of intentional program violation was made. However, DHS must not include in its calculation any amount of the overissuance which occurred in a month more than six years from the date the overissuance was discovered for food stamp cases. sec.79.2011. Collection Action on Food Stamp and Aid to Families with Dependent Children (AFDC) Intentional Program Violation Claims. (a) (No change.) (b) The Texas Department of Human Services (DHS) must begin collection action on intentional program violation claims, unless: (1)-(2) (No change.) (c)-(d) (No change.) (e) If the household against which collection action has been initiated for repayment of an intentional program violation claim is currently participating in the program and does not respond to the written demand letter within 10 days of the date the notice is mailed, DHS will reduce the household's food stamp allotment and/or AFDC grant. If a nonparticipating household against which collection action has been initiated fails to respond to the first demand letter, DHS sends additional demand letters at reasonable intervals, until: (1)-(3) (No change.) (f)-(h) (No change.) (i) If the investigator interviews the person suspected of committing an intentional program violation and the person expresses that he does not want to have an administrative disqualification hearing and is willing to repay the overissuance, the following policies and procedures apply. (1) (No change.) (2) By signing the waiver of hearing and repayment agreement forms, the recipient agrees that he does not want a hearing, that he will repay the overissuance, and that he understands that he will be disqualified from receiving food stamps and/or AFDC for a period of time determined by whether it is the first, second, or third offense. If there is no face-to-face contact between the investigator and the client, the client may be given an opportunity to waive his right to a hearing through direct mail contact. (3)-(4) (No change.) 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 May 5, 1992. TRD-9206177 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: July 1, 1992 Proposal publication date: March 27, 1992 For further information, please call: (512) 450-3765 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.97, the Texas Register publishes notices of actions taken by the State Board of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the State Board of Insurance, 333 Guadalupe, Austin.) The State Board of Insurance, at a board meeting scheduled on April 23, 1992, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, considered a proposal filed on behalf of the Texas Workers' Compensation Insurance Facility. The Facility proposed a new rule establishing a take out credit rule. The rule was proposed in a petition (Reference Number W-1291-6), filed by the Facility on December 23, 1991. On April 23, 1992, the State Board of Insurance adopted a new rule establishing a take out credit rule with changes in the proposed text. The adopted take out credit rule provides, in part, that a member of the Texas Workers' Compensation Insurance Facility (Facility) or the state fund shall receive a credit against the amount of its voluntary market writings if the insurer provides coverage for at least two years to a rejected risk that was most recently insured through the employers' rejected risk fund. The rule further provides that an insurer or the state fund may not receive a credit for any risk rejected by that insurer or a member of that insurer's group within the preceding 12 months and that an insurer or the state fund will not receive credit for any policy removed from the Facility within one calendar year of that insurer's or a member of that insurer's group writing the policy in the voluntary market. Additionally, the rule further provides that a policy may be written at a rate not greater than rates applicable to the risk in the Facility if the insurer writes the risk for a second year at rates applicable to the risk in the voluntary market, and that any credit calculated shall be applied to the assessment for the calendar year in which the policy is written (calendar year shall mean the year used for assessment purposes). The credit shall be granted to the insurer only if continuous coverage is provided for the complete year without cancellation for at least two years. The requirements for receiving a credit are outlined in full as follows: As set out in Texas Insurance Code, Article 5.76-2, sec.5.01, a member of the Texas Workers' Compensation Insurance Facility (Facility) or the state fund shall receive a credit against the amount of its voluntary market writings if the insurer provides coverage for at least two years to a rejected risk that was most recently insured through the employer's rejected risk fund. An insurer or the state fund may not receive a credit for any risk rejected by that insurer or a member of that insurer's group within the preceding 12 months. An insurer or the state fund will not receive credit for any policy removed from the Facility within one calendar year of that insurer's or a member of that insurer's group writing the policy in the voluntary market. A policy may be written at a rate not greater than rates applicable to the risk in the Facility, if the insurer writes the risk for a second year at rates applicable to the risk in the voluntary market. Any credit calculated shall be applied to the assessment for the calendar year in which the policy is written (calendar year shall mean the year used for assessment purposes). The credit shall be granted to the insurer only if continuous coverage is provided for the complete policy year without cancellation for at least two years. In order to receive a credit each insurer shall: 1. file and maintain its current underwriting guidelines pursuant to the Rules and Regulations of the Texas Workers' Compensation Insurance Facility (TWCIF) (the Facility). Insurers who have properly filed guidelines under the Market Assistant Program are not required to make a separate filing under this program; 2. provide the Facility a copy of the information page of the policy written to the Facility for each year you are claiming a credit; 3. provide the Facility with the last policy number and term of the risk insured in the employers' rejected risk fund. For the purpose of receiving a credit on your voluntary writings, "most recently insured" means a risk who is currently insured by the Facility and has been insured by the Facility for at least the last 12 consecutive months. 4. rovide the Facility a list of cancellations or nonrenewals; 5. provide the Facility with the amount of premium to be received from a policy during the first calendar year; This premium shall be the estimated annual premium as calculated by using payroll based on the last four quarterly reports of wages paid for the State of Texas as reported to the I.R.S. and the State of Texas. 6. provide the Facility with the amount of premium to be received from a policy during the second calendar year. This premium shall be the estimated annual premium as calculated by using payroll based on the last four quarterly reports of wages paid for the State of Texas as reported to the I.R.S. and the State of Texas. 7. report to the Facility the amount of premium for each policy which you are claiming a credit. The report to the Facility shall be in the form prescribed by the Facility as shown on Exhibit A (attached). The reports must be filed with the Facility within 45 days after the end of each quarter. The first report to be filed shall be for the quarter ending June 30, 1992 and quarterly thereafter. The policy's effective date must be within the quarter you are reporting on. 1. The Facility shall give the insurer any authorized credit against the amount of its voluntary market writings if the insurer provides coverage for at least two years as follows: one hundred percent of the premium written during the first calendar year of the policy as reported in accordance with the previous rule 5; and eighty percent of the premium written during the second calendar year of the policy as reported in accordance with the the previous rule 6. 2. The Facility shall review each policy to insure that the member company is entitled to the credit claimed on its quarterly reports. Any exception noted shall be promptly reported to the member company. 3. The Facility will provide a report to the insurer of the premium to be given as credit. The insurer has 30 days to respond. If no exception is given to the report within 30 days there will be no further adjustments. 4. The Facility shall charge a member company that fails to provide coverage for at least two years the difference between the assessment calculated without the credit and the assessment calculated with the credit for each year that a credit has been granted. No insurer may receive credits in excess of their workers' compensation voluntary premium written as shown on page 14 of their Texas annual statement. The Facility retains the right to audit any member claiming a credit under this rule. Any violations will be reported to the Facility anti-fraud coordinator for appropriate action. 5. If a member company fails to provide coverage for at least two years for any reason other than those listed in Texas Amendatory Endorsement WC 42 03 01 C, Part Six, Paragraph D(3) and if the Facility rate is less than the applicable voluntary market rate, the member company must refund to the policyholder the difference between the Facility rate and the member company's voluntary market rate applicable to the policyholder and filed with the Texas Department of Insurance for the period of time during which the policyholder received coverage under this rule from the member company. This new rule is effective 15 days after publication in the Texas Register. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedures and Texas Register Act. [graphic] 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 May 6, 1992. TRD-9206214 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: May 27, 1992 For further information, please call: (512) 463-6327