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 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 5. Quarantines Sweet Potato Weevil Quarantine 4 TAC sec.5.63, sec. sec.5.65-5.68 The Texas Department of Agriculture adopts amendments to sec.5.63 and sec.sec.5.65-5.68. Section 5.68 is adopted with changes to the proposed text as published in the July 21, 1992, issue of the Texas Register (17 TexReg 5057). Section 5.63 and sec.sec.5.65-5.67 are adopted without changes and will not be republished. The amendments are made to provide procedures for the shipment of sweet potatoes in Texas, and into Texas from out of state, in order to lessen the threat of the introduction of the sweet potato weevil into weevil free areas of Texas. The unrestricted shipment of sweet potatoes into and within Texas poses a serious threat to the sweet potato industry from the sweet potato weevil. Section 5.68, previously applied to the "Official Sweet Potato Weevil Eradication Area" of Texas. The proposed amendment would eliminate the designation of an "Eradication Area" and, instead, make this section applicable to "Weevil Free" areas. Comments were received from sweet potato growers in weevil free areas at the public hearing held on this matter. Growers stated that they do not feel that the November 15 harvest date provided in subsection (d) is appropriate for weevil free areas, and that the imposition of a harvesting deadline would be a hardship, as the great majority of sweet potatoes are not ready to be harvested before November 15. In addition, growers stated that the setting of any harvest date is not practical, as more often than not, inclement weather conditions would warrant extensions. The department agrees with this position, and has changed subsection (d) by eliminating the November 15 harvesting deadline and providing a more general directive regarding harvesting in weevil free areas. Accordingly, new subsection (g) has been deleted, as it applies to the extension of the harvesting and/or destruction date. The amendments as adopted, add Ouachita County, Arkansas, to the list of regulated areas; add certain containers to the list of restricted materials and provide provisions for their use; correct the address for sending certificates of inspection to the department; and delete the designation "eradication area". Public comment was taken on the proposed amendments at a public hearing held by the department in Golden, Texas. Several individual producers appeared at the hearing and provided oral testimony. Comments generally favored the amendments, except for the imposition of a harvesting deadline for weevil free areas, as previously discussed. Producers acknowledged that the sweet potato weevil must be controlled in order to maintain weevil free areas and that containers are a source of contamination and/or infestation if unchecked. In addition to the holding of a public hearing, the department personnel conducting the hearing have, in accordance with the Texas Agriculture Code, sec.71.006, submitted a report establishing the need to add Ouachita County, Arkansas, to the list of counties regulated under the Sweet Potato Weevil Quarantine. The amendments are adopted under the Texas Agriculture Code, sec.71.007, which provides the department with the authority to adopt rules as necessary for the protection of agricultural and horticultural interests; sec.71.001, which provides the department with the authority to establish quarantines against infested areas outside the state; and sec.71.006, which provides the department with the authority to adopt rules to establish a quarantine under sec.71.001 after hearing and submission of a report supporting the quarantining of the infested area. sec.5.68. Bedding, Production, and Distribution of Sweet Potatoes and Sweet Potato Slips in Weevil Free Areas. (a) Source of planting stock. Owners of properties within the weevil free areas shall secure bedding potatoes, plants, vines, and cuttings only from sources and under conditions approved by the state quarantine official. (b)-(c) (No change.) (d) Harvest. All sweet potatoes shall be harvested or destroyed. (e)-(f) (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 October 19, 1992. TRD-9214181 Dolores Alvarado Hibbs Chief Administrtive Law Judge Texas Department of Agriculture Effective date: November 10, 1992 Proposal publication date: July 21, 1992 For further information, please call: (512) 463-7583 TITLE 10. COMMUNITY DEVELOPMENT Part V. Texas Department of Commerce Chapter 178. Texas Community Development Program Subchapter A. Allocation of Program Funds 10 TAC sec.178.20 The Texas Department of Commerce adopts the repeal of sec.178.20, concerning colonia fund, without changes to the proposed text as published in the May 22, 1992, issue of the Texas Register (17 TexReg 3769). The administration of the Texas Community Development Program was transferred to the Texas Department of Housing and Community Affairs from Commerce on September 1, 1991, pursuant to Senate Bill 41, 72nd Legislature, Second-Called Session. The Texas Department of Housing and Community Affairs has adopted new rules governing the Colonia Fund 10 TAC sec.9.9. The administration of the Texas Community Development Program was transferred to the Texas Department of Housing and Community Affairs from Commerce on September 1, 1991, pursuant to Senate Bill 41, 72nd Legislature, Second-Called Session. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Government Code, sec.481.021, which provides the Texas Department of Commerce with the authority to adopt and enforce necessary rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 20, 1992. TRD-9214220 Sedora Jefferson General Counsel Texas Department of Commerce Effective date: November 10, 1992 Proposal publication date: May 22, 1992 For further information, please call: (512) 320-9666 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter P. Commercial Zones 16 TAC sec.5.294 The Railroad Commission of Texas adopts an amendment to sec.5.294 concerning existing commercial zones, without changes to the proposed text as published in the September 1, 1992, issue of the Texas Register (17 TexReg 5993). The amendment is adopted in order to recognize the local nature of transportation service between Roanoke and the remainder of the Dallas/Fort Worth metropolitan area. The comments amply demonstrated the factors necessary to conclude that Roanoke is adjacent to and commercially a part of the cities of Dallas and Fort Worth. The amendment is adopted to add the city of Roanoke to the existing Dallas and Fort Worth commercial zones. Transportation between Roanoke and the remainder of the commercial zones, with the exception of transportation by specialized motor carrier, will be considered local and not regulated by the commission. Comments received indicated that most residents of Roanoke are employed within the commercial zone, that Roanoke is closer to the central cities of Dallas and Fort Worth than other communities included within the zone, that the largest employer in Roanoke is a distribution center serving the metropolitan area, and that there will be no adverse effect on common carriers currently serving the Roanoke area. No comments were received in opposition to the rule. No groups or associations submitted comments regarding the rule. The agency does not disagree with the comments regarding the rule. The amendment is adopted under the Motor Carrier Act, Texas Civil Statutes, Article 911b, which authorize the commission to prescribe rules and regulations for the operations of motor carriers. sec.5.294. Existing Commercial Zones. Commercial zones defined and prescribed by the commission after notice and hearing are as follows. (1) The Dallas commercial zone shall include the following: (A)-(B) (No change.) (C) the following cities and towns which are adjacent to and commercially a part of the City of Fort Worth; Haltom City; Watauga, Richland Hills, North Richland Hills, Hurst, Bedford, Colleyville, Grapevine, Euless, Arlington, Pantego, Dalworth Gardens, Kennedale, Forest Hill, Everman, Burleson, Crowley, Edgecliff, Benbrook, Aledo, White Settlement, Westover Hills, Westworth Village, River Oaks, Sansom Park, Lake Worth Village, Lakeside, Azle, Saginaw, Mansfield, Blue Mound, Keller, and Roanoke; (D)-(I) (No change.) (2) The Fort Worth commercial zone shall include the following: (A)-(C) (No change.) (D) the following cities and towns which are adjacent to and commercially a part of the City of Fort Worth: Halton City, Watagua, Richland Hills, North Richland Hills, Hurst, Bedford, Colleyville, Grapevine, Euless, Arlington, Pantego, Dalworth Gardens, Kennedale, Forest Hill, Everman, Burleson, Crowley, Edgecliff, Benbrook, Aledo, White Settlement, Westover Hills, Westworth Village, River Oaks, Sansom Park, Lake Worth Village, Lakeside, Azle, Saginaw, Mansfield, Blue Mound, Keller, and Roanoke; (E)-(G) (No change.) (3)-(6) (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 October 19, 1992. TRD-9214218 Nolan Ward Hearings Examiner-Legal Division, General Law Railroad Commission of Texas Effective date: November 10, 1992 Proposal publication date: September 1, 1992 For further information, please call: (512) 463-7094 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 98. HIV and STD Control Subchapter B. HIV Education Grant Program General Provisions 25 TAC sec.98.67 The Texas Department of Health (department) adopts an amendment to sec.98.67, concerning the State HIV Education, Prevention, and Risk Reduction Advisory Committee, without changes to the proposed text as published in the May 29, 1992, issue of the Texas Register (17 TexReg 3894). The amendment modifies the existing "community-based organization to reach Blacks" membership category to "community-based organization to reach African Americans." The amendment clarifies the membership category. No comments were received regarding adoption of the amendment. The amendment is being adopted under the Human Immunodeficiency Virus Services Act, Health and Safety Code, Chapter 85, sec. sec.85.031-85.044, which provides the Board of Health with the authority to establish an advisory committee to assist the board in the implementation of the State HIV Education Grant Program; sec.11.016, which provides the Board of Health with the authority to appoint advisory committees; and 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, the Texas Department of Health, and the Commissioner of Health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 20, 1992. TRD-9214183 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: November 10, 1992 Proposal publication date: May 29, 1992 For further information, please call: (512) 458-7463 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter O. State Sales and Use Tax 34 TAC sec.3.323 The Comptroller of Public Accounts adopts an amendment to sec.3.323, concerning imports and exports, with changes to the proposed text as published in the August 28, 1992, issue of the Texas Register (17 TexReg 5931). The amendment to this section will be effective January 1, 1993. The amendment sets out new export requirements and references the new section on customs brokers, 34 TAC sec.3.360. The changes are to subsections (c)(2) and (5), (e)(1) and (4). One comment was received from Dresser Industries of Dallas. Dresser questioned the proposed amendment to subsection (c)(4) which stated, "Documentation of exportation provided to the seller by a person other than the original purchaser listed on the seller's records is not acceptable proof of export,...." Dresser stated that the proof of export referred to in subsection (c)(1)(A), (B), and (C) would not ordinarily be in the possession of an exporter's customer. Dresser requested that the rule be changed to allow such documents to be provided by the carrier. Dresser also questioned the requirement that the seller retain the original invoice of sale. Dresser stated that the customers received the original invoice and that the seller retained a copy. The comptroller responded that both amendments referred to refund situations. When a customer seeks a refund of sales tax after an item has been exported, documentation of exportation provided to the seller must be presented by the original purchaser. The customer would present to the seller the acceptable proof of export documents listed in subsection (c) along with the purchaser's original receipt or invoice. The amendment 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.3.323. Imports and Exports. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1)-(3) (No change.) (4) Licensed customs broker-A person licensed by the United States Customs Service to act as a custom house broker and registered with the Comptroller of Public Accounts according to the terms of sec.3.360 of this title (relating to Customs Brokers). (b) (No change.) (c) Exports. (1) When an exemption is claimed because tangible personal property is exported beyond the territorial limits of the United States, proof of export may be shown only by: (A) (No change.) (B) documentation that is valid under the terms of sec.3.360 of this title provided by a licensed United States customs broker certifying that delivery was made to a point outside the territorial limits of the United States; (C)-(E) (No change.) (2) The retailer is responsible for obtaining proof of exportation. Except as provided in sec.3.358 of this title (relating to Maquiladoras), exemption certificates, affidavits, or statements from the purchaser that the goods will be or have been exported are not sufficient to exempt the sale as an export. The Texas proof of export form is no longer acceptable as proof of export. A passport number taken by a seller from a passport issued by a foreign country is not acceptable as proof of export. (3) Storing property in Texas by the owner prior to exportation is a use of that property in Texas. Property stored or otherwise used or consumed in Texas by the owner loses its exemption as an export. For example, clothing or jewelry actually worn by the purchaser in Texas is used in Texas; automotive parts installed on the purchaser's motor vehicle in Texas are used in Texas if the vehicle is subsequently driven in Texas; and food ready for immediate consumption that is purchased in Texas is presumed to be used in Texas. Sufficient time will be allowed to arrange for shipping. Property in Texas longer than 30 days from date of purchase will be presumed to have been stored. Any use of the property in Texas by the owner prior to export also causes the loss of the export exemption. Property in the hands of a freight forwarder is not covered by this provision. (4) (No change.) (5) If a seller delivers property to a purchaser in Texas, the seller must collect tax at the time of sale. The tax may not be refunded until the property has actually been exported from the territorial limits of the United States and the seller has received valid proof of export as described in this subsection. There is a rebuttable presumption that a certificate issued by a registered customs broker who complies with sec.3.360 of this title is valid. Tax not collected will be assessed against the seller. This paragraph does not apply when proof of export is provided to the seller at the time of sale by a maquiladora according to the terms of paragraph (1)(E) of this subsection. (d) (No change.) (e) Refunds. (1) A retailer who collects sales tax on a taxable item which qualifies for exemption under subsection (b) of this section may refund to the original purchaser the sales tax collected upon presentation by the original purchaser of export documentation as required by subsection (c) of this section. Documentation of exportation provided to the seller by a person other than the original purchaser listed on the seller's records is not acceptable proof of export, even if such documentation otherwise meets the requirements of this subsection. A refund issued to a person other than the original purchaser will be assessed against the seller. (2) (No change.) (3) A copy of the certified check, company check, money order, credit memo, or signed cash receipt must be attached to the original export documents and maintained in the seller's files. (4) In an audit, the auditor must be able to tie the export documents to the original taxable transaction. The seller must retain the original invoice of the sale. Cash register receipts and other records of the original taxable transaction that do not include a detailed, specific description of the items purchased are not sufficient to tie the export documents to the original taxable transaction. Refunds made pursuant to undocumented or improperly documented export exemptions will be assessed against the seller. (f) Records. Please refer to sec.3.281 of this title (relating to Records Required; Information Required), sec.3.282 of this title (relating to Auditing Taxpayer Records), and sec.3.360 of this title. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 16, 1992. TRD-9214270 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: January 1, 1993 Proposal publication date: August 28, 1992 For further information, please call: (512) 463-4028 34 TAC sec.3.360 The Comptroller of Public Accounts adopts new sec.3.360, concerning customs brokers, with changes to the proposed text as published in the August 28, 1992, issue of the Texas Register (17 TexReg 5934). This new section will be effective January 1, 1993. The new section sets out the procedures for licensing customs brokers and details their responsibilities in the export process. No comments were received regarding adoption of the amendment. Changes were made to subsection (c)(1), (2), and (5). A new paragraph (3) was added to subsection (c). The paragraphs following the new paragraph (3) were renumbered. All paragraphs after paragraph (3) in subsection (d) were renumbered. The primary change in the adopted rule is to require a license for each place of business. 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.3.360. Customs Brokers. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Licensed customs broker-A United States customs broker who is registered with the comptroller as provided for in this section. (2) United States customs broker-A person licensed by the United States Customs Service to act as a custom house broker. (b) Signature needed. Only a licensed customs broker or an employee of a licensed customs broker may issue and sign a valid export certification form as provided for in sec.3.323 of this title (relating to Imports and Exports). (c) Customs broker licensing. A United States customs broker may apply to the comptroller for a license to issue export certifications. (1) To obtain a license, a broker must submit an application in the form prescribed by the comptroller for each location from which goods are certified for export. There is no application fee. (2) To be accepted, an application for each location must include the following: (A) a copy of the applicant's United States customs broker's license; (B) the applicant's name, address, telephone number, and social security number; (C) the names, addresses, telephone numbers, and social security numbers of all employees who are authorized to certify exports in the name of the applicant; (D) copies of each employee's power of attorney to certify exports in the name of the applicant; (E) the name of the applicant's business and the address of each location where export certifications are prepared; (F) the applicant's original signature, together with a certification that the applicant will maintain business records available for inspection by employees of the comptroller on request. (3) The comptroller must be notified promptly when any information in paragraph (2) of this subsection changes. The comptroller may require that information in paragraph (2) of this subsection be resubmitted periodically. (4) A license issued under this section will continue in effect until surrendered by the broker or until suspended or revoked by the comptroller. (5) A license issued under this section must be prominently displayed at each of the broker's places of business. A license must be prominently displayed at each place of business of the broker where export certifications are prepared. (d) Suspension and revocation of licenses. (1) The comptroller shall suspend a license issued to a broker whose license to act as a custom house broker has been suspended by the United States Customs Service. The license to issue export certifications will be suspended from the effective date of the suspension issued by the United States Customs Service until the effective date of reinstatement by the United States Customs Service, unless the comptroller determines that a longer period of suspension is necessary for the enforcement of this section. (2) The comptroller shall revoke a license issued to a broker whose license to act as a custom house broker has been revoked by the United States Customs Service. The license to issue export certifications will be revoked on the effective date of the revocation of the license issued by the United States Customs Service, unless the comptroller determines that it is necessary for the enforcement of this section to revoke the license at an earlier date. (3) The comptroller may revoke or suspend a customs broker's license to issue export certifications if the broker has violated a provision of the Tax Code or the comptroller's rules. (4) Except as provided in paragraph (1) of this subsection, the comptroller may suspend a broker's license: (A) for not more than 180 days if the broker's license has not been previously suspended or revoked and reinstated; (B) for not more than 360 days if the broker's license has been previously suspended or revoked and reinstated. (5) Except as provided in paragraph (2) of this subsection, the comptroller may revoke a broker's license if the broker's license has been suspended at least twice previously or has been previously revoked. (6) A person whose license the comptroller proposes to revoke or suspend is entitled to 20 days' written notice of the time and place of the hearing on the revocation or suspension. At the hearing the person must show cause why the license should not be suspended or revoked. (7) The comptroller shall give written notice of the revocation or suspension of a license to the holder of the license. The comptroller may mail the notice to the place designated on the application for a license as the place of business. (e) Reinstatement of licenses. A United States customs broker whose license to issue export certifications has been revoked under subsection (b) of this section may apply to the comptroller for reinstatement of the license no sooner than three years after the effective date of the revocation. The comptroller may reinstate the license if the comptroller is satisfied that the broker has a good faith intent to comply with the Tax Code and the comptroller's rules. (f) Export certification stamps. (1) The comptroller shall design and have printed or manufactured export certification stamps. The comptroller shall determine the design, size, and quantity of stamps manufactured. The stamps shall be manufactured so that they may be easily and securely attached to a licensed customs broker's export certification form. The comptroller may designate the method of identification for the stamps. (2) The comptroller may change the design of the stamps as often as deemed necessary for the best enforcement of this section. The design of the stamps will be changed at least once each calendar quarter. (3) A licensed customs broker may obtain export certification stamps from the comptroller. There is no fee for the stamps. (4) Only a licensed customs broker may receive the stamps. A broker whose license has been suspended or revoked may not receive stamps. (5) A stamp is invalid if transferred to a person other than the broker to whom the comptroller originally issued the stamp or to an employee of that broker. (g) Records required. A licensed customs broker must keep available for inspection by the comptroller books and records that include, at a minimum, the following: (1) an exact copy of each export certification issued; (2) a copy of a Mexican passport, a United States visa, or a crossing card (Mica) attached to each certification issued for an item exported to Mexico; (3) a ledger that lists sequentially all export certifications issued or voided; (4) an inventory of export certification stamps received from the comptroller; (5) a current list of all employees authorized to issue and sign export certifications. (h) Contents of licensed customs broker export certification. The documentation provided by a licensed United States customs broker must, at a minimum, reflect the following information: (1) the name and address of the purchaser of the merchandise; (2) the name and address of the seller of the merchandise; (3) the name and address of the customs broker; (4) the date of sale, date of exportation, and location of exportation; (5) the description of the items exported; (6) the invoice number and sales price of the items exported; (7) the broker's license number and an original signature of the broker or the broker's employee, together with a certification that the merchandise has been exported. A copy of the United States customs broker's license is not acceptable in lieu of proper certification; (8) a valid export certification stamp; (9) the documentation must be sequentially numbered. (i) Suggested form of certification. A suggested form for the licensed customs broker's export certification is set out as Attachment A. [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 October 16, 1992. TRD-9214064 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: January 1, 1993 Proposal publication date: August 28, 1992 For further information, please call: (512) 463-4028 Subchapter Q. Franchise Tax 34 TAC sec.3.405 The Comptroller of Public Accounts adopts the repeal of sec.3.405, concerning surplus, without changes to the proposed text as published in the May 26, 1992, issue of the Texas Register (17 TexReg 3824). This section is being repealed in order that it can be adopted under Texas Administrative Code Title 34, Part I, Chapter 3, Subchapter V. The section will be replaced with a new 34 TAC sec.3.551, concerning taxable capital: surplus. No comments were received regarding adoption of the repeal. The repeal 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 October 20, 1992. TRD-9214190 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: November 10, 1992 Proposal publication date: May 26, 1992 For further information, please call: (512) 463-4028 Subchapter V. Franchise Tax 34 TAC sec.3.551 The Comptroller of Public Accounts adopts new sec.3.551, concerning taxable capital: surplus, with changes to the proposed text as published in the May 26, 1992, issue of the Texas Register (17 TexReg 3830). This new section replaces 34 TAC sec.3.405, concerning the same subject matter, which is being repealed in order that it can be adopted under Texas Administrative Code Title 34, Part I, Chapter 3, Subchapter V. This new section explains surplus for taxable capital purposes. The change was to subsection (d)(2) for clarification. No comments were received regarding adoption of the new section. 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.3.551. Taxable Capital: Surplus. (a) Effective date. The provisions of this section apply to franchise tax reports originally due on or after January 1, 1988. (b) Date upon which based. A corporation filing an annual report must report surplus based on its last accounting period ending date in the previous calendar year, or, if there is no accounting period ending in the previous calendar year, then as of December 31 of the previous calendar year. (c) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Amortization-The accounting process of allocating the cost of assets to expense in a systematic and rational manner over the period expected to benefit from the use of the assets. (2) Depletion-The accounting process of allocating the cost of natural resources to expense in a systematic and rational manner over the period during which the natural resources are consumed. (3) Depreciation-The accounting process of allocating the cost of tangible assets to expense in a systematic and rational manner over the period expected to benefit from the use of the assets. (4) Investee-An enterprise which issues voting stock held by an investor. (5) Tax effect-Any change in cumulative federal income tax liability which results from the different accounting treatment of a transaction for franchise tax purposes than that accorded for federal income tax purposes. (6) Unrealized, estimated, or contingent loss or obligation -An appropriation of retained earnings for any purpose or an account established to record a loss or obligation anticipated to occur and the amount of which is estimated as of the date on which the tax is based (e.g., self-insurance, warranty, litigation). (7) Write-down of assets-Any reduction or offset of the cost of an asset through use of a valuation, allowance, reserve, or contra-asset account, or through direct write-off of the asset (except a write-off to reflect the asset's permanent decline in value). (d) General rules of application. (1) Accounting methods. (A) Installment sales. In reporting sales made on an installment basis, the installment sales method of accounting is acceptable for franchise tax purposes only when GAAP (as defined in sec.3.547 of this title (relating to Accounting Methods)) allows its use. (B) Partnerships/joint ventures. In reporting an investment in a partnership or joint venture, the equity method of accounting must be used. (C) Oil and gas corporations. Corporations with $1 million or more of taxable capital must report all oil and gas exploration and production activities according to the successful efforts or the full cost methods of accounting. Acceptable oil and gas reserve estimating methods to be used in amortizing intangible drilling costs are listed in sec.3.553 of this title (relating to Methods for Estimating Oil and Gas Reserves). Corporations with less than $1 million of taxable capital, as determined in accordance with the Tax Code, sec.171.109(c), may report their oil and gas exploration and production activities using the same method selected to compute their federal income tax. (D) Other. For more information on methods of accounting for franchise tax purposes, see sec.3.547 of this title (relating to Accounting Methods). (2) Tax effect. A surplus adjustment will be reported net of any applicable tax effect. (3) Intercompany tax accounts. A liability account for income taxes owed by one member of a consolidated group to a second member of the group is excluded from the surplus of the first member only if the related receivable account is included in the surplus of the second member. Intercompany tax accounts must be reported on a consistent basis among members of the same consolidated group. (4) S corporations. An S corporation must calculate its franchise tax in the same manner as any other corporation. For example, accumulated and other adjustment accounts are included in surplus, as are previously taxed income, accumulated earnings and profits, and all other amounts included in the surplus of any other corporation. For more information on an S corporation utilizing the method of accounting used on its federal income tax return, see sec.3.548 of this title (relating to Close and S Corporations). (e) Specific rules. Specific rules of application include, but are not limited to, the following. (1) Amortization of goodwill. The amortization of goodwill is excluded from surplus except when goodwill is included in the parent's cost of a subsidiary investment. Investments in subsidiary corporations or other investees must reflect the cost method of accounting in accordance with the Tax Code, sec.171.109(h). (2) Deferred investment tax credit. For reports due on or after January 1, 1992, deferred investment tax credit is included in surplus. For reports due between January 1, 1988, and December 31, 1991, deferred investment tax credit may be excluded from surplus. (3) Foreign currency transactions. Realized gains, unrealized gains, and unrealized losses resulting from foreign currency transactions are included in surplus. Realized losses are excluded from surplus. (4) Foreign currency translations. Foreign currency translations are disregarded when computing surplus. Unrealized gains resulting from foreign currency translations are not included in surplus. Unrealized losses from foreign currency translations are not allowable reductions to surplus. (5) Income taxes payable. Amounts accrued in excess of actual liability for income taxes relating to current or prior periods (e.g., amounts accrued which relate to a period under IRS audit which has not been agreed to by the corporation) are included in surplus. (6) Deferred income taxes. For reports due on or after January 1, 1992, deferred income taxes are included in surplus. For reports due prior to January 1, 1992, deferred income taxes may be excluded from surplus to the extent they are recognized under generally accepted accounting principles. (7) Employee benefits. Liabilities for employee compensation and benefits (e.g., pensions, bonuses, vacations, retirement, medical, insurance, post retirement, and other similar benefits) are included in surplus to the extent they are not debt as of the accounting year end upon which the return is based. (8) Public utility corporations. Revenue from temporary or bonded rate increases of a public utility company is included in surplus. (9) Treasury stock. The amount paid for treasury shares is excluded from surplus. See also sec.3.550 of this title (relating to Stated Capital). (10) Write-off of assets. A direct write-off of all or a portion of the cost of an asset to reflect a permanent decline in the asset's value, the direct cause of which is a specifically identifiable event, is excluded from surplus. (11) Redeemable preferred stock. Redeemable preferred stock is not included in surplus if it is debt. (12) Surplus deficit. A surplus deficit can be subtracted from stated capital. (13) Dividends. Dividends that are not paid within one year from the date of declaration will be included in surplus. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 20, 1992. TRD-9214189 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: November 10, 1992 Proposal publication date: May 26, 1992 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety Chapter 4. Capitol Police Protection of State Buildings and Grounds 37 TAC sec.sec.4.1-4.10 The Texas Department of Public Safety adopts new sec. sec.4.1-4.10, concerning protection of state buildings and grounds. Sections 4.1-4.3, 4.5-4. 8 are adopted with changes to the proposed text as published in the June 30, 1992, issue of the Texas Register (17 TexReg 4673). Sections 4.4, 4.9, 4.10 are adopted without changes and will not be republished. The adoption of these sections will ensure the public that state-owned buildings and property are properly secured, accessible to the public, and a safe work environment is provided to state officials and employees. Section 4. 1 and sec.4.2 have been revised to properly set out the name of the State Preservation Board. Section 4.2 has also been amended to provide that public use of the Old General Land Office Building is governed by rules of the State Preservation Board and that the Capitol Police District will provide security for that building. Section 4.3 and sec.4.8 have been revised to specify when the public portions of state buildings are open, and to clarify the terminology regarding the person in an agency having authority with regard to building pass cards, electric access cards, and keys. Section 4.5 has been revised to clarify the reporting procedures for fire and safety hazards. Section 4.6 contains a revision to clarify that the section refers to licensed peace officers. Section 4.7 has been revised in response to comments received from the Governor's office relating to placing and distributing literature, material, placards, and banners in state buildings. The revision is made to comply with a recent decision of the United States Supreme Court regarding First Amendment activities in publicly owned facilities. These sections are necessary to provide safe work environment for state officials and employees; to protect the grounds, public buildings, and property of the state; to regulate entrance to and public use of state-owned buildings; and to investigate criminal activity. These sections further promulgate regulations for evacuations, after-hour entrance, and control of key and lock systems. One comment was received from an individual, then Chief of Staff, Office of the Governor. The comment referred to a recent United States Supreme Court ruling with regard to soliciting and distribution of pamphlets in certain public areas. The comment suggested a deletion of sec.4.7(a)(2), or the imposition of reasonable restrictions on the placement or distribution of literature rather that an absolute ban. The Office of the Governor commented against adoption of these rules. The department believes that the adoption of reasonable time, place, and manner restrictions is preferable to a lack of regulation of solicitation and distribution of pamphlets, based upon considerations of workplace efficiency and safety. The revised rules addressed the concerns set forth in the comments in a manner which complies with constitutional law requirements. The new sections are adopted under the Texas Government Code, sec.411.006(4), which provides the director with the authority to adopt rules, subject to commission approval, considered necessary for the control of the department. sec.4.1. General. (a) All duties and responsibilities of the Capitol Security Police Division of the State Purchasing and General Services Commission were transferred to the Texas Department of Public Safety by action of the State Legislature in 1991. This transfer was accomplished by amending Committee Substitute Senate Bill 9, 72nd Legislature, by striking section sec.2.19 (g) and (m) and inserting a new subsection (g). Paragraph (1) of this amendment states: "As of the effective date of this Act all the duties, functions, positions, responsibilities, inventory, property, and other items assigned to the Capitol Security Police Division of the State Purchasing and General Services Commission are transferred to the Texas Department of Public Safety." (b) Under the authority of the amendment and under Texas Civil Statutes, Article 601b, sec.4.01 and sec.4.12, the Texas Department of Public Safety is authorized to protect the grounds, public buildings, and property of the state, to regulate parking, and to control entrance to state-owned buildings; and to regulate displays and other public use of state buildings. (c) The Texas Department of Public Safety has designated the former Capitol Security Police as the Capitol Police District and placed it under the Traffic Law Enforcement Division of the Texas Department of Public Safety. (d) Within the Capitol Complex, as defined herein, the Department of Public Safety will strive to provide a safe work environment for state officials and employees; to protect the grounds, public buildings, and property of the state; to regulate parking; to regulate entrance to and public use of state-owned buildings; and to investigate criminal activity occurring in these locations. (e) These rules shall be applicable to state buildings and property within the Capitol Complex as defined in subsection (g) of this section. (f) The provisions of these rules pertaining to public buildings and grounds do not apply to buildings and grounds of: (1) institutions of higher education, as defined by Texas Education Code, sec.61.003, as amended; (2) state agencies to which control has been specifically committed by law; and (3) state agencies that have demonstrated ability and competence to maintain and control their buildings and grounds and to which the General Services Commission has delegated that authority. (g) The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise. (1) Board-The State Preservation Board (2) Buildings and state buildings-State-owned buildings and property within the Capitol Complex. (3) Capitol Complex-An area in the city of Austin, bounded on the south by 10th Street, on the north by Martin Luther King Boulevard, on the east by Trinity Street, on the west by Lavaca Street, and including the William P. Clements Building located at 300 West 15th Street. The term shall also apply to other locations under the jurisdiction of the Capitol Police District as may be approved by the director. (4) Capitol police-Members of the Capitol Police District of the Texas Department of Public Safety. (5) Commission-The Texas General Services Commission. (6) Department-The Texas Department of Public Safety. (7) Director-The director of the Texas Department of Public Safety. sec.4.2. Use of Capitol Rotunda and Grounds. (a) Public use of the Capitol Building, the Capitol Extension, the Capitol Grounds, and the Old General Land Office Building are governed by rules promulgated by the State Preservation Board. (b) Members of the Capitol Police District are hereby authorized to enforce those rules adopted by the Board. (c) Members of the Capitol Police District will provide protective and security services to the Capitol Building, the Capitol Extension, the Capitol Grounds, and the Old General Land Office Building in coordination with the board. sec.4.3. Access to State Buildings. (a) Public access. Public access to state buildings is generally unlimited. However, nothing in these rules shall be understood as permitting the use of any public building, in any manner whatsoever, when such use is for a commercial purpose. (b) Admission to state buildings. The public portions of state buildings are generally open to the public at all times, with the general exception of Saturdays, Sundays, and state holidays, and from 6 p.m. to 7 a.m. on working days. Access to state buildings during the times they are not open to the public shall be by building pass card, electronic access card, special permission, or emergency admission. (1) Building pass cards and electronic access cards. The chief executive of each agency, in the state building referenced in this subsection shall be responsible for the control of building pass cards and electronic access cards issued for their agency. The chief executive may delegate this responsibility to another person(s) in the agency, provided that the Capitol Police Office is notified in writing of the name(s) with a sample of designees' signatures. Agency designees may not appoint other agency designees. (2) Card application. Applications for such cards must be signed by the agency designee and completed by the employee. The employee will take the application to the Capitol Police Office for issuance. No card will be issued unless the application is complete and signed by the agency designee. An employee may have both a building pass card and an electronic access card. When this occurs, separate applications will be required. The electronic access card is not a building pass card and will not be accepted in any other location other than the location for which it was issued. (3) Agency designee. It is the responsibility of the agency designee to notify the Capitol Police Office immediately of any termination of the employee. The agency designee shall return the employee's card to the Capitol Police Office. (4) Special permission. Special permission is communicated by an appropriate public official or his representative to the Capitol Police Office specifically approving one-time admission to a named individual. Such authorization should be in writing. (5) Emergency admission. Emergency admission is solely within the discretion of the officer on duty, and such officer must accompany the admitted individual at all times while he is in the building. (c) Building register (admission log). A building register for each building shall be kept for the times it is closed to the public, and each person entering the building, except those entering with an electronic access card, must complete the information called for in the register. sec.4.5. Fire and Safety Inspections. Members of the Capitol Police District will continually be alert for conditions constituting fire or safety hazards. When such conditions are discovered, a written report will be made and a copy will be forwarded to the appropriate section of the General Services Commission. In areas under the jurisdiction of the Capitol Fire Marshal and State Preservation Board, such reports will also be forwarded to those entities. sec.4.6. Prohibited Weapons. Firearms, explosive weapons, illegal knives, clubs, and knuckles, as defined in the Texas Penal Code, sec.46. 01, and prohibited weapons as defined in the Texas Penal Code, sec.46.06, are not permitted in state buildings or on state grounds covered under these rules, except in the possession of a licensed peace officer. A properly licensed private security officer may possess a firearm or nightstick if he is working under an approved department contract and the contract authorizes the use of an armed guard. sec.4.7. Solicitation in State Buildings. (a) No individual, corporation, association, or organization may be permitted in state buildings for the purpose of: (1) selling, or offering for sale, any real property, goods or services; or (2) soliciting gifts of money, or gifts of property, without regard to the charitable nature of such gifts, or the method of solicitation. (b) Nothing in this section shall be understood to prohibit any agency head from authorizing any or all of the acts in subsection (a) of this section within the confines of that agency's space in state buildings. (c) The placing or distributing of advertising literature, material, placards, banners, posters, etc., in state buildings is limited to the common areas, such as lobbies, and other areas as designated by the agency head, within the confines of that agency's space in state buildings. The activities described in this subsection shall not be conducted in a manner which disturbs or disrupts work activity or which compromises security of employees, visitors, or state property. Such activities may be conducted only during the times specified in sec.4.3(b) of this title (relating to Access to State Buildings). (d) The activities prohibited in subsections (a) and (c) of this section are also prohibited on state parking lots and in state parking garages. Literature may be distributed at the entrances or exits to such facilities if the activity does not impede vehicular or pedestrian traffic. (e) A state-sponsored fund raising event for a charitable organization may be approved under the following circumstances. (1) The charitable organization must have tax-exempt status, with the Internal Revenue Service and/or the state comptroller. (2) The event must be approved by the executive director of each agency housed within the building. (3) All proceeds from the event must go to the charitable organization. (4) The event must be organized, directed, and staffed by state employees only. (5) No commercial advertisements may be displayed. sec.4.8. Key and Locksmith Services. (a) Provisions. The provisions of this section are designed to promote the care, protection, and security of the state buildings in the Capitol Complex. The Capitol Police District shall be responsible for administering the provisions of this section. (b) Authority. Only the director and/or the commander of the Capitol Police District shall have the authority to duplicate keys or perform locksmith services for the doors of the state buildings referenced in subsection (a) of this section. In emergency situations such as fire or medical emergencies, it is imperative that Capitol Police personnel have immediate access to all buildings and offices within the Capitol Complex. (c) Control of interior door keys. The chief executive of each agency in the state buildings referenced in subsection (a) of this section shall be responsible for the control of interior door keys to the space assigned the agency. The chief executive may delegate this responsibility to another person(s) in the agency, provided that the Capitol Police Office is notified in writing of the names of such designees. Agency key designees may not appoint other agency key designees. (d) Requesting duplicate door keys. Any key designee needing duplicate door keys should notify the commander of the Capitol Police, or his designee, of the request, indicating the building, room number, key number, and the number of keys required. (e) Receipt of keys. The elected official or state agency chief executive officer or his or her respective designee may obtain the keys requested either for a door re-key or duplication of keys by signing a department service order indicating by his or her signature he or she has received the keys. (f) Returning keys. Any and all keys issued to an elected official, state agency chief executive, or his or her respective employees must be returned to the Capitol Police Office upon his or her termination of service to the state or upon termination of employment. (g) Installation and maintenance of locking hardware. Service for the installation and maintenance of all locking hardware must be obtained through the General Services Commission. Installation of new or additional locking hardware must be compatible to and capable of being placed under the Capitol Police District grand master and control system and must be coordinated through the Capitol Police District. (h) Construction. All construction which involves adding, relocating, removing, or in any way modifying locking hardware that is in a facility that is under the jurisdiction of the Capitol Police must be coordinated through the Capitol Police District and must be compatible to and capable of being placed under the Capitol Police District grand master and control system. (i) Master keys. Master keys of any level may only be issued by the authority of the director and/or the commander of the Capitol Police District. Any request for a master key must be submitted in writing indicating the reasons for the request and must be signed by the elected official or the chief executive officer of the agency. (j) Building entrance door keys. Building entrance door keys may only be issued by the authority of the director and/or the commander of the Capitol Police District. Any request for a building entrance door key must be submitted in writing indicating the reasons for the request and must be signed by the elected official or the chief executive officer of the agency. (k) Charge for services. A fee may be charged to recover the cost of services rendered. Said fee to be established by the chief fiscal officer of the department and approved by the director. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 16, 1992. TRD-9214186 James R. Wilson Director Texas Department of Public Safety Effective date: November 10, 1992 Proposal publication date: June 30, 1992 For further information, please call: (512) 465-2000 Parking and Traffic Administration 37 TAC sec.sec.4.31-4.46 The Texas Department of Public Safety adopts new sec. sec.4.31-4.46, concerning parking and traffic administration. Sections 4.31-4.33, 4.35, 4.36, 4.38, 4.40, 4.41, and 4.43, are adopted with changes to the proposed text as published in the June 30, 1992, issue of the Texas Register (17 TexReg 4673). Sections 4.34, 4.37, 4.39, 4.42, 4.44-4.46 are adopted without changes and will not be republished. The adoption of these sections will ensure the public that equitable and economical parking facilities for state employees, state officials, and the visiting public are provided and violations are properly handled. Section 4.31 has been revised in response to comments from the Texas Governor's Committee on People with Disabilities relating to parking permits for disabled persons. Other changes in that section were made to clarify the definition of open parking and listed exemptions. Section 4.32 was revised in response to a comment from the Secretary of State. The revision clarifies utilization survey procedure. Another revision to that section clarified the language in the sentence concerning individual space assignments and open parking facilities. Section 4.33 was amended to respond to a further comment from the Secretary of State. The revision clarified that one subsection acted as an exception to the previous subsection. Section 4.35 was amended to clarify that the department sets the monthly parking fee. Section 4.36 was amended, in response to comments from the Texas Governor's Committee on People with Disabilities, to clarify the method by which disabled parking permits are issued. Section 4.38 and sec.4.41 were amended to delete revisions relating to nonutilization of parking spaces ince those provisions are unnecessary under current procedures. Section 4.40 was revised to clarify procedures to be used if hanging parking permits are issued. Section 4.41 was also amended to clarify the procedure for administrative review of citations, and to provide additional means for a person who has received a citation to present evidence with regard to that matter. That section was also revised to clarify that the late charge for payment of a citation is $2.00. Section 4.43 was revised to provide that impounded vehicles may not be released until only the towing and storage fees have been paid. These sections promulgate regulations regarding reserved parking, free parking, car pooling, traffic control, parking for the disabled, impoundment of vehicles, penalties for violation, and administrative adjudication. The annual reserved parking fee continues without any change. 4.33(a) and (b) was in conflict. He also requested a detailed explanation of weekly utilization surveys referred to in sec.4.32(c) and information obtained during peak utilization periods referred to in sec.4.32(f). He further asked for an explanation of the circumstances referred to in sec.4.32(f) that would warrant adjustments in the number of permitted assignments. His written comments also requested a public hearing. At the public hearing, held on October 13, 1992, written comments were received from the executive director of the Texas Governor's Committee on People with Disabilities. Those comments suggested language relating to compliance with the Americans with Disabilities Act and the federal rules relating to that act. The comments also suggested language with regard to eligibility for reserved disabled parking spaces, and exemption from the nonutilization provisions, and enforcement of the disabled parking permit. The Secretary of State, and Texas Governor's Committee on People with Disabilities commented against the adoption. The department disagrees with the comments of the Secretary of State with regard to the conflict between sec.4.33(a) and (b). The department interprets subsection (b) as being an exception to subsection (a), but has revised the provisions upon adoption to clarify the point. With regard to the comments from the Texas Governor's Committee on People with Disabilities, the department disagreed with the exact language purposed by the committee, but adopted major portions of the suggested changes. The department disagrees with the proposal regarding nonutilization, since that section has been deleted. The department also believes that the current procedure for providing disabled persons parking permits should not be made more stringent on the person seeking such a permit. The new sections are adopted under Texas Government Code, sec.411.006(4), which provides the director with the authority to adopt rules, subject to commission approval, considered necessary for the control of the department. sec.4.31. General. (a) Objective. (1) The overall objective is to provide for the most equitable and economical parking facilities for state employees, state officials, and the visiting public in accordance with the general law as set out in Texas Civil Statutes, Article 601b, sec.4.12 and sec.4.14. Parking is administered by the parking administration with full authority to carry out the responsibilities of the Texas Department of Public Safety. (2) In addition to a limited number of reserved parking spaces, these sections allow for free parking for other employees. Assignments for free parking will be made to locations as near as possible to the employee's work location. Parking in these locations will be on a first-come basis. (3) In an effort to conserve energy and to alleviate traffic congestion in the Capitol Complex, car pooling will be encouraged by the assignment of free reserved parking. (4) Under the provisions of the Americans with Disabilities Act (ADA) and 29 Code of Federal Regulations Part 1630.2, a qualified employee with a disability will be assigned a free reserved parking space that meets the specifications of the ADA Accessibility Guidelines. As a reasonable accommodation for employees with significant mobility impairments, a free reserved space as near as possible to the building where the employee is employed shall be designated, whether in space assigned to the employing agency or in space managed by the department. (b) Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise. (1) Availability for assignment-Refers to the status of a lot or garage, either a part or the whole of which is used for open parking assignment and shows a utilization of its open parking areas of less than 100% during peak use hours. (2) Open parking-The assignment of a right to park anywhere within a specific parking lot or garage except in those spaces marked as "reserved." No monthly charge is made for open parking. (3) Parking administration-A section of the Capitol Police District, Texas Department of Public Safety. (4) Reserved parking-Assignment of a specific parking space to a state official or to an employee. The spaces will be marked by signs and/or yellow painted curbs or stops. (c) Exemptions. The following areas will not be regulated under these parking sections except as noted: (1) Texas Employment Commission. parking facility under the management and control of the Texas Employment Commission; (2) the parking garage in the capitol extension project and the parking spaces on the grounds of the Capitol. However, the department may enforce the parking regulations established by the State Preservation Board; (3) parking areas outside the Capitol Complex. State parking lots and garages outside the Capitol Complex will not be regulated by the department except under the authority of individual contracts and agreements approved by the director of the Texas Department of Public Safety. (d) Agency parking coordinator. Each occupying agency will designate one of its employees to be the parking coordinator, and the parking administration will provide each coordinator with detailed instructions for the proper administration of these guidelines. sec.4.32. Assignment to a Reserved Space or Open Facility. (a) The assignment to a reserved space or open facility is considered a privilege which can be revoked at any time for nonpayment or noncompliance with the parking regulations. In addition, this privilege may be revoked to permit implementation of changes in the parking system or these rules as mandated by the department. Revocation because of department mandate will give the employee losing an assignment a priority for reassignment to a space or facility as near as possible to the employee's work location. The acceptance and use of a parking assignment constitutes acceptance of all sections and regulations regarding such assignment. The department shall designate lots or garages for use by employees of particular buildings in order to give better distribution to parking utilization, subject to the priority of assignment established in Texas Civil Statutes, Article 601b, sec.4.12(c), and sec.4.36 of this title (relating to Priority of Assignments). (b) Employees of state agencies are eligible for assigned parking so long as they office four hours or more a day during the normal state workweek between the hours of 7 a.m. and 6 p.m. within the Capitol Complex. If the department enters into a contract or agreement to administer the parking for an area outside the Capitol Complex, the same rules will apply. (c) Employees, upon request, will be placed on a waiting list for an open parking assignment to a lot or garage in close proximity to their work location. They can be placed on the list for not more than two locations, applicable only to those lots or garages designated for use by the building where the applicant is employed. Weekly utilization surveys of open parking areas will be conducted to determine the number of available spaces in all lots and garages. Such surveys will be conducted at times, and during months, which have been observed by the parking administration as typically having the largest number of vehicles using open parking. When utilization surveys show a pattern of available spaces in an open parking location, the parking administration will make available a number of open parking assignments, after taking into consideration the pattern of utilization and the number of current assignments for the particular location. Eligible employees will be notified in writing. The employee will be given five working days in which to accept or decline the assignment. When notification letters have been mailed, employees are automatically removed from the waiting list for the lot or garage designated in the notification letter. Once a parking assignment has been accepted by an employee, that employee is automatically removed from all waiting lists. New applications, not immediately assignable, shall be dated and time stamped as they are received by the department and placed on the respective lists in chronological order. Assignments from the waiting list will be made on a "first-on, first-off" basis, refer to the exceptions for new lots or garages described in sec.4.33 of this title (relating to New Lots/Garages). (d) All assignments relinquished, cancelled, terminated, or forfeited shall become reassignable in accordance with these sections on the effective date of relinquishment, cancellation, termination, or forfeiture. (e) The department may designate and request the commission to mark parking spaces for state-owned vehicles and visitors parking in the Capitol Complex, or on other state property outside the Capitol Complex when said property is administered by the department as provided in sec.4.31 of this title (relating to General). (f) In making assignments to open parking facilities, individual space assignments are not permitted. The department may assign more individuals to park in the lot or garage than there are spaces available. Determination of the number of assignments to such an area, allowed by this subsection, shall be based upon information obtained during peak utilization periods. Adjustments in the number of permitted assignments may be made from time to time as circumstances warrant, in an effort to obtain full utilization of state parking facilities. (g) Each state agency housed in the Capitol Complex, or on other state property administered by the department, is allotted a number of reserved spaces based on the needs of the agency and the availability of spaces. The department will ensure that all agencies are allocated at least one space for individual assignment. Each state agency is responsible for assignment of these spaces and for notifying the parking administration of all reserved assignments, additions, and deletions. A monthly charge shall be paid quarterly in advance for each assigned reserved space within a lot or garage as described in sec.4.35 of this title (relating to Monthly Parking Charges, Payment, and Refunds). All other spaces whether a part or the whole of a lot or garage shall be marked for open assignment in accord with these sections. sec.4.33. New Lots/Garages. (a) Whenever a new lot or parking garage is opened for operation, assignments will be made as near as possible to the employee's work location. (b) Provided that whenever a new garage is opened that is connected to or part of a building, whether by new construction or by purchase of an existing facility, assignments to that location will be first made to the employees occupying the building. (c) Additional and further assignments will be made in accordance with these sections. sec.4.35. Monthly Parking Charges, Payment, and Refunds. (a) Charges. Monthly charge for assigned parking will be at the rate set by the state legislature, or if no rate is set, at a rate set by the department. The department sets the rate at $10 for individual employees assigned reserved spaces within a lot or garage. (b) Payment. Monthly charges shall be paid quarterly in advance, due on the first day of September, December, March, and June. The payment is considered delinquent on the 10th of the month, at which time a notice is sent to the employee advising him or her to remit payment within five working days of the date of notice. (c) Partial payments. Payment for partial quarters will be allowed only when a state employee receives a parking assignment in mid-quarter. Parking assignments made prior to the 15th of the month require the full payment for the month. Assignments made on or after the 15th of the month will have the payment applied to the next month's lease. (d) Refunds. Employees who cancel their assignment will be issued refunds as follows: (1) full refund for cancellations prior to the 15th of the first month of the quarter; (2) Two-month refund for cancellations prior to the 15th of the second month, but after the 16th of the first month of quarter; (3) one-month refund for cancellations prior to the 15th of the third month, but after the 16th of the second month of quarter; (4) no refund for cancellations after the 15th of the third month of quarter. (e) Imprest account. Under the authority of the State Appropriations Act, "appropriations for parking fees," the parking administration will maintain a $500 imprest account for payment of refunds. This account will be funded from parking revenue and will be administered in accordance with approved procedures established for petty cash accounts by the Comptroller of Public Accounts. sec.4.36. Priority of Assignments. (a) When the legislature is in session, the department shall assign and have marked, for unrestricted use by members and administrative staff of the legislature, the reserved parking spaces in the Capitol Complex requested by the respective houses of the legislature. A request for parking spaces reserved pursuant to this subsection shall be limited to spaces in the capitol area and the additional spaces in state parking lots proximately located to the Capitol. (b) When the legislature is not in session, the department shall, at the request of the respective legislative bodies, assign and have marked the spaces requested for use by members and administrative staff of the legislature, in the areas described in subsection (a) of this section. (c) The department may assign parking spaces to elected state officials and appointed heads of state agencies who occupy space in state buildings located within the bounds set forth in Texas Civil Statutes, Article 601b, sec.4.12(a). (d) The department will assign parking spaces to state employees with disabilities. See sec.4.31 of this title (relating to General). (1) A state employee will be considered eligible for permanent assignment to a free reserved disabled persons parking space if: (A) the person holds a Texas Department of Transportation disabled person parking privilege issued by a county tax assessor-collector; or (B) the nature of the disability impairs mobility to the degree that walking any appreciable distance to the employee's work station would be difficult, or impossible, for the employee to accomplish. (2) The application for a disabled permit must be accompanied by evidence that the person holds a Texas Department of Transportation disabled parking privilege issued by a tax assessor-collector, or acceptable medical proof from a licensed physician that the state employee is currently disabled. (3) Qualified employees with a disability shall be entitled to a free reserved space as near as possible to their work location. (4) State employees who are ill, or who have been injured, may receive a free reserved space for up to 30 days without medical proof from a licensed physician. (e) If spaces are available, the department may assign parking spaces to car pools. See sec.4.39 of this title (relating to Car Pools). (f) The department may assign an appropriate number of reserved parking spaces to state agencies housed in the Capitol Complex, or in other state facilities administered by the department whether or not located in the City of Austin. See sec.4.32 of this title (relating to Assignment to a Reserved Space or Open Facility). (g) All remaining parking facilities under the charge and control of the department in the area described in subsection (f) of this section, may be made available for use by state employees. Such employees shall be those working for agencies who occupy space in state buildings, located within the area specified in subsection (f) of this section. (h) To implement the requirements of this section, the department shall not be required to assign all of the spaces available. The department by discretion may make use of any unassigned spaces designated under this section, so long as that use is in accordance with Texas Civil Statutes, Article 601b, sec.4.12 and these sections. sec.4.38. Sublease and Utilization. Subleasing an assignment shall not be permitted and is a violation of these sections. It is possible for an employee who pays for his or her individual space assignment to allow another state employee to use that assignment during vacations, absences due to illness, or official travel, provided the parking administration office is notified in advance, but charging a fee for this favor is a violation of these sections. sec.4.40. Parking Permits. (a) All vehicles utilizing open parking must display a current parking permit. One permit will be issued to each employee. This will allow the employee to use the permit regardless of who owns the vehicle. The department is authorized to issue either decal permits or hanging permits. (1) Decal permits shall be applied to the vehicle according to instructions provided at the time of issuance. (2) Hanging permits will normally be hung from the rearview mirror when the vehicle is parked in a state parking lot or garage. If no mirror post is available, the permit may be taped to the front windshield, in the lower center, or otherwise displayed so that it is readily visible from outside the vehicle. If hanging permits are issued, one permit will be issued to each eligible employee. The employee may use the hanging permit on any vehicle which the employee drives to work. (b) An employee who is issued a permit will be responsible for any parking violations on vehicles bearing the permit. (c) Employees with unpaid charges recorded in their name shall be ineligible to receive a parking permit while such charges remain unpaid. (d) All permits will expire and be renewed on a biennial basis. (e) Change in parking assignment requires the return of the parking permit before any new parking assignment can be obtained. (f) Permits must be surrendered upon termination of employment and the permit returned to the parking administration. (g) Lost or stolen permits must be reported immediately to the parking administration office. sec.4.41. Enforcement. (a) Department officers are responsible for enforcing these parking regulations and traffic violations on state property. For purposes of enforcing the parking rules only, the department may assign either commissioned officers or noncommissioned security workers. The assignment of security workers shall only be made with the written approval of the commander of the Capitol Police District. (1) To carry out this responsibility and authorization, the department may issue two types of citations for any parking violations occurring within the jurisdiction of the parking administration. (A) Administrative citations issued by the Capitol Police District are subject to administrative adjudication. (B) Court appearance citations constitute a notice to appear in either a municipal court or a justice court. Failure to discharge a court appearance citation may result in the issuance of a warrant of arrest. (C) The department reserves the right to issue a court appearance ticket for any violation. (D) Administrative citations will generally be issued for violation of these parking regulations. (2) When a court appearance citation is issued for any violation, the penalty shall be assessed by the court in accordance with statutory law. (b) Whenever an administrative citation is issued for an violation of these sections, the administrative fine shall be $10. (c) The following procedures will apply for administrative citations. (1) Any person who is issued an administrative citation shall pay the fine, in person or by mail, to the parking administration office, no later than the 10th calendar day after the citation is issued. If payment is not received or postmarked within the 10 days, a $2.00 late charge will be assessed. (2) If a person wishes to appeal a citation, he/she may do so in accordance with subsection (f) of this section. (3) Unpaid charges for parking offenses will be recorded in the name of the permit holder or in the name of the registered owner of the vehicle as shown in the records of the Texas Department of Transportation. (4) Unpaid charges for other violations will be recorded in the name of the person driving the vehicle. (5) Persons with unpaid charges recorded in their name shall be subject to the following actions. (A) If the unpaid charges are in the name of a person who has a parking privilege, forfeiture of that privilege will be initiated under sec.4.42 of this title (relating to Forfeiture of Parking Privilege). (B) If the unpaid charges are in the name of a person who does not have a parking privilege, the person shall be given a written notice that the vehicle is placed on an impoundment list and will be impounded if found on state property under sec.4.42 of this title. (d) The following acts, when committed within the Capitol Complex or within other areas under the administration and control of the department as provided by sec.4.31 of this title (relating to General) shall constitute parking violations for which either an administrative or court appearance citation may be issued: (1) parking overtime in a space which is limited in time by meters or signs, or parking overtime in a loading zone; (2) moving a barricade or parking within any barricaded area; (3) parking on any lawns, curb, sidewalk, or any area which creates an obstruction to vehicular or pedestrian traffic; (4) parking in a "No Parking" area; (5) parking within 15 feet of a fire plug or within a fire zone; (6) failing to park within a lined parking space. Vehicles shall be parked within the boundaries of the designated lined spaces. The fact that other vehicles are parked improperly shall not constitute an excuse for parking with any part of the vehicle over the line; (7) parking in a loading zone except while loading or unloading; (8) parking over 18 inches from the curb or parking stop, measured from any part of the car body facing the curb or parking stop; (9) parking with the rear of the vehicle facing the curb or parking stop; (10) parking in a space or facility other than the one assigned, unless authorization has been obtained; (11) parking in a designated parking area without displaying proper permit; (12) parking upon any unmarked or unimproved area which has not been designated for parking; (13) double-parking; (14) parking in a handicapped space without displaying a proper permit; (15) possession or use of a lost/stolen or forged permit; (16) possession or use of a current permit that has been defaced or altered; (17) oversized vehicle in a stall marked for small or compact vehicles; (18) blocking or impeding a crosswalk, driveway, or alley; or (19) parking in a state parking facility by an employee who has lost his/her parking privileges due to forfeiture. (e) The following shall constitute other traffic violations for which the penalty shall be a fine not to exceed $200 in accordance with applicable law: (1) speeding, i.e., operating a motor vehicle on state property in excess of 15 miles per hour; (2) other violations of Texas Civil Statutes, Article 6701d, not otherwise specified in this section. (f) Any person who has received an administrative citation may appeal the citation in accordance with this section. (1) Administrative review. (A) Any person who has received an administrative citation may request that the citation be reviewed by the parking administration office. If the request is not made within 10 days, the citation is deemed final. (B) The review will be made by the supervisor of Parking Administration or his designee. The person who received the citation may request that the review be done in person, and may bring evidence or witness(es) to present to the person conducting the review. The person may also request that the department officer who issued the citation be present to provide evidence. (C) After reviewing the circumstances of the administrative citation, the supervisor of parking administration or his designee may order the payment of the administrative fine or the cancellation of such charges. If the citation is upheld and the appealing party fails to pay the charges or to request an appeal within 10 calendar days of the decision, a $2.00 late charge will be assessed on the citation. (i) If on reviewing a citation for a violation of subsection (d)(11) of this section, parking in a designated area without displaying proper permit, the supervisor of parking administration or his designee determines that the employee had in fact been issued a permit for the area that was valid at the time the citation was issued, and the same violation had not been committed within the past six months, he/she shall dismiss the citation. (ii) A second violation within a six-month period will not be dismissed under clause (i) of this subparagraph. (D) The appealing party will be notified in writing of the decision regarding the review. (2) Court appeal from administrative review decision. (A) Any person who has requested a review of an administrative citation and who is not satisfied with the decision may file a written request for a court hearing. If a court hearing is requested, the appeal will be to the court, either municipal or justice, in which the department is currently filing court appearance citations. (B) Any person who wishes a court hearing must file a written request within 10 calendar days from the decision date shown on the review decision form. When the request is received, parking administration will file a complaint with the appropriate court and issue a court appearance citation. A copy of the citation will be mailed to the appealing party along with information on how and when to contact the court. (3) Failure to discharge administrative citation. If a person fails to discharge an administrative citation, either by payment of the fine or by appropriate appeal, the unpaid charges will be entered under his name and he will become subject to forfeiture of his parking privilege under sec.4.42 of this title and/or sec.4.43 of this title (relating to Impoundment of Vehicles). sec.4.43. Impoundment of Vehicles. (a) When an impound violation has occurred or when necessary to protect the public health, safety, or welfare or to promote and protect a critical state function, the department may impound or cause to be removed any vehicle presenting such an obstacle. (b) The department may also impound or cause to be removed any permitted or nonpermitted vehicle which has received one or more state citations which have not been timely paid, or any state employee's vehicle whose parking privileges have been forfeited. When unpaid charges are recorded or an employee's parking privileges have been forfeited, the department will send a letter to the last known address of the person. (c) A vehicle left on state property for a period of more than 48 hours without the approval of the parking administration will be considered abandoned. This does not apply to state-owned vehicles. (d) Vehicles shall be impounded by or at the direction of the department. The vehicle impounded shall not be released until all towing and storage fees have been paid. (e) The department shall not be responsible for any fees, costs, or damages resulting from vehicle removal and impoundment. (f) The term "impoundment" includes removal or immobilization of the vehicle in question. (g) A vehicle is subject to impoundment under the following circumstances: (1) parking in a handicapped or reserved space without displaying proper permit; (2) possession or use of a lost, stolen, or forged permit; (3) parking on a state parking facility when parking privileges have been forfeited; (4) parking within any barricaded area; (5) parking a vehicle on a curb or sidewalk, or in any manner which creates an obstruction to vehicular or pedestrian traffic; or (6) parking in a "No Parking" zone or fire zone. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 16, 1992. TRD-9214187 James R. Wilson Director Texas Department of Public Safety Effective date: November 10, 1992 Proposal publication date: June 30, 1992 For further information, please call: (512) 465-2000