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 16. ECONOMIC REGULATION Part VIII. Texas Racing Commission Chapter 301. Definitions 16 TAC sec.301.1 The Texas Racing Commission adopts an amendment to sec.301.1, concerning definitions, without changes to the proposed text as published in the January 29, 1993, issue of the Texas Register (18 TexReg 545). The amendment is adopted to ensure that the rules of the commission are consistent with state law and are easily understood by its licensees. The amendment adds a definition for reasonable belief. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing 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 March 15, 1993. TRD-9320584 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 10, 1993 Proposal publication date: January 29, 1993 For further information, please call: (512) 794-8461 Chapter 311. Conduct and Duties of Individual Licensees Subchapter C. Alcohol and Drug Testing Drugs 16 TAC sec.311.201 The Texas Racing Commission adopts an amendment to sec.311.201, concerning use prohibited, without changes to the proposed text as published in the January 29, 1993, issue of the Texas Register (18 TexReg 545). The amendment is adopted to ensure that pari-mutuel racing is safe for the licensees and is conducted with utmost integrity. The amendment prohibits a licensee from having a dangerous drug or controlled substance in his or her system while on the grounds of a pari-mutuel racetrack. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.14.03, which authorizes the commission to adopt rules prohibiting the illegal influence of a race. 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 March 15, 1993. TRD-9320585 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 10, 1993 Proposal publication date: January 29, 1993 For further information, please call: (512) 794-8461 16 TAC sec.311.202 The Texas Racing Commission adopts an amendment to sec.311.202, concerning subject to testing, without changes to the proposed text as published in the January 29, 1993, issue of the Texas Register (18 TexReg 545). The amendment is adopted to ensure that pari-mutuel racing is safe for the licensees and is conducted with utmost integrity. The amendment establishes the penalty for licensee's refusal to submit to a drug test. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.14.03, which authorizes the commission to adopt rules prohibiting the illegal influence of a race. 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 March 15, 1993. TRD-9320586 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 10, 1993 Proposal publication date: January 29, 1993 For further information, please call: (512) 794-8461 16 TAC sec.311.203 The Texas Racing Commission adopts an amendment to sec.311.203, concerning method of selection, without changes to the proposed text as published in the January 29, 1993, issue of the Texas Register (18 TexReg 546). The amendment is adopted to ensure that pari-mutuel racing is safe for the licensees and is conducted with utmost integrity. The amendment clarifies the method of selection for drug testing. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.14.03, which authorizes the commission to adopt rules prohibiting the illegal influence of a race. 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 March 15, 1993. TRD-9320587 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 10, 1993 Proposal publication date: January 29, 1993 For further information, please call: (512) 794-8461 16 TAC sec.311.206 The Texas Racing Commission adopts an amendment to sec.311.206, concerning positive test results, without changes to the proposed text as published in the January 29, 1993, issue of the Texas Register (18 TexReg 546). The amendment is adopted to ensure that pari-mutuel racing is safe for the licensees and is conducted with utmost integrity. The amendment clarifies the procedure for evaluating drug test results, including the duties and requirements for the selection of the medical review officer. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.14.03, which authorizes the commission to adopt rules prohibiting the illegal influence of a race. 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 March 15, 1993. TRD-9320588 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 10, 1993 Proposal publication date: January 29, 1993 For further information, please call: (512) 794-8461 16 TAC sec.311.208 The Texas Racing Commission adopts an amendment to sec.311.208, concerning penalties, without changes to the proposed text as published in the January 29, 1993, issue of the Texas Register (18 TexReg 546). The amendment is adopted to ensure that pari-mutuel racing is safe for the licensees and is conducted with utmost integrity. The amendment outlines the penalties for an individual licensee who has been tested for drugs. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.14.03, which authorizes the commission to adopt rules prohibiting the illegal influence of a race. 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 March 15, 1993. TRD-9320589 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 10, 1993 Proposal publication date: January 29, 1993 For further information, please call: (512) 794-8461 Alcohol 16 TAC sec.311.222 The Texas Racing Commission adopts an amendment to sec.311.222, concerning breathalyzer or other test, without changes to the proposed text as published in the January 29, 1993, issue of the Texas Register (18 TexReg 547). The amendment is adopted to ensure that pari-mutuel racing is safe for the licensees and is conducted with utmost integrity. The amendment clarifies the selection process for licensees to submit to a breathalyzer or other testing while on association grounds. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.14.03, which authorizes the commission to adopt rules prohibiting the illegal influence of a race. 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 March 15, 1993. TRD-9320590 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 10, 1993 Proposal publication date: January 29, 1993 For further information, please call: (512) 794-8461 16 TAC sec.311.223 The Texas Racing Commission adopts an amendment to sec.311.223, concerning penalties, without changes to the proposed text as published in the January 29, 1993, issue of the Texas Register (18 TexReg 548). The amendment is adopted to ensure that pari-mutuel racing is safe for the licensees and is conducted with utmost integrity. The amendment outlines the penalties for an individual licensee who has been tested for alcohol. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act, and sec.14.03, which authorizes the commission to adopt rules prohibiting the illegal influence of a race. 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 March 15, 1993. TRD-9320591 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: April 10, 1993 Proposal publication date: January 29, 1993 For further information, please call: (512) 794-8461 TITLE 19. EDUCATION Part II. Texas Education Agency Chapter 157. Hearings and Appeals Subchapter A. General Provisions for Hearings Before the Commissioner of Education The Texas Education Agency (TEA) adopts the repeal of sec. sec.157.1-157.16, 157.64-157.68, and 157.91-157.98, concerning hearings and appeals, without changes to the proposed text as published in the January 5, 1993, issue of the Texas Register (18 TexReg 101). The chapter is being repealed in accordance with the sunset review process mandated by Senate Bill 1, 71st Legislature. A new Chapter 157 is being proposed in a separate submission. The review process will result in a clearer, more concise statement of the rules relating to hearings and appeals. 19 TAC sec.sec.157.1-157.16 The repeals are adopted under Senate Bill 1, sec.2.25, 71st Legislature, Sixth Called Session, which authorizes the State Board of Education to review all rules, other than portions of Chapter 75, under Title 19, Texas Administrative Code, relating to public education. 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 March 17, 1993. TRD-9320429 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: April 7, 1993 Proposal publication date: January 5, 1993 For further information, please call: (512) 463-9701 Subchapter A. Hearings Concerning Students with Disabilities under the Individuals with Disabilities Education Act 19 TAC sec.sec.157.1-157.9 The Texas Education Agency (TEA) adopts new sec.sec.157.1-157.9, 157.21, and 157.26, concerning hearings and appeals. Section 157.8 is adopted with changes to the proposed text as published in the January 5, 1993, issue of the Texas Register (18 TexReg 101). Sections 157.1-157.7, 157.9, 157.21, and 157.26 are adopted without changes and will not be republished. The new sections are adopted in accordance with the sunset review process mandated by Senate Bill 1, 71st Legislature. The sections provide procedures for hearings concerning proprietary and driver training schools and cases related to students with disabilities. The change to sec.157.8(m) and new sec.157.8(p) are adopted in response to new federal requirements concerning hearings. The sunset review process will result in a clearer, more concise statement of the rules relating to hearings and appeals. The following public comments were received concerning adoption of the new sections. Comment: When the state is conservator of a student, the rights and duties of the state to request a hearing and represent a student should be specified. Agency response: Because of potential conflict of interest, federal regulations forbid the state to represent a student or bring a hearing. When the state is conservator of a student, the school district in which the child is enrolled is required by federal law to appoint a surrogate parent to represent the child. Therefore the hearing rules cannot include provision for the state to request a hearing. Comment: The rules should require provision and posting of written notice of student's rights to request a hearing. Agency response: Federal regulations and State Board of Education rules currently require such notice. Comment: The hearing rules should make it clear that a parent may bring an attorney and/or a representative. Agency response: This suggestion has been included in sec.157.6(a)(1). Comment: The rules should clarify that the 45-day time line starts from the date of filing the request for hearing, regardless of any notification to the requestor to specify the issues to be heard. Agency response: This requirement is currently stated in sec.157.8(k). The commentators were Advocacy, Inc., and several individuals representing private law firms. The new sections are adopted under the Texas Education Code, sec.21.501 and sec.32.22; 20 United States Code, sec.1415; and Texas Civil Statutes, Article 4413(29c), sec.4 and sec.17, which authorize the State Board of Education to promulgate rules regarding hearings on proprietary and driver training schools and cases related to students with disabilities. sec.157.8. Hearing. (a) The hearing officer shall afford the parties an opportunity for hearing after reasonable notice of not less than 10 days, unless the parties agree otherwise. (b) Each hearing shall be conducted at a time and place that are reasonably convenient to the parents and child involved. (c) All persons in attendance shall comport themselves with the same dignity, courtesy, and respect required by the district courts of the State of Texas. All argument shall be made to the hearing officer alone. (d) Before the offer, documents offered into evidence shall be numbered, have pages within each exhibit numbered, and have personally identifiable information deleted. (e) The hearing officer may set reasonable time limits for the presentation of evidence at the hearing. (f) Upon request, the hearing officer at his or her discretion may permit the testimony of experts to be received by telephone. (g) Granting of a motion to exclude witnesses from the hearing room shall be at the hearing officer's discretion. (h) Hearings conducted under these sections shall be closed to the public, unless the parent or eligible student requests that the hearing be open. (i) The hearing shall be recorded and transcribed by a reporter, who shall immediately prepare and transmit a transcript of the evidence to the hearing officer with copies to the parties. The hearing officer shall instruct the reporter and the parties to delete all personally identifiable information from the transcription and from all evidence submitted. (j) Filing of post-trial briefs shall be permitted only upon order of the hearing officer and shall be limited to issues specified by the hearing officer. (k) The hearing officer shall issue a final decision no later than 45 days after a request for hearing is filed. A final decision must be in writing and shall include findings of fact and conclusions of law separately stated. Findings of fact must be based exclusively on the evidence and on matters officially noticed under the Administrative Procedure and Texas Register Act (APTRA), Texas Civil Statutes, Article 6252-13a, sec.14. The final decision shall be mailed to each party by the hearing officer. The hearing officer at his or her discretion may render his or her decision following the conclusion of the hearing, to be followed by written findings of fact and written decision. (l) A hearing officer may grant extensions of time for good cause beyond the period set out in subsection (k) of this section at the request of either party. Such extensions shall be granted to a specific date and shall be set forth in writing by the hearing officer to the parties. (m) The decision made under subsection (k) of this section is final, unless a party brings a civil action under 20 United States Code, sec.1415(e) in state or federal court. (n) Under the Individuals With Disabilities Education Act (IDEA) requirements concerning prompt rendering of final decisions, decisions issued under this subchapter shall be final. No motion for rehearing shall be required for a decision to be appealable to court, under the APTRA, Texas Civil Statutes, Article 6252-13a, sec.16(c). The decision shall recite the fact that the public welfare requires immediate effect of the final decision. (o) Under the Texas Rules of Civil Procedure, Rule 298, a party may request, within 10 days after the date of the decision, specified additional or amended findings or conclusions. The hearing officer shall issue any additional or amended findings or conclusions that are appropriate, within the discretion of the hearing officer, within ten days after such request is filed. (p) Final decisions containing findings of fact and conclusions of law shall be made available to the public after any personally identifiable information has been deleted. 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 March 17, 1993. TRD-9320432 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: April 7, 1993 Proposal publication date: January 5, 1993 For further information, please call: (512) 463-9701 Subchapter B. Hearings Held under the Texas Proprietary School Act 19 TAC sec.157.21 The new section is adopted under the Texas Education Code, sec.21.501 and sec.32.22; 20 United States Code, sec.1415; and Texas Civil Statutes, Article 4413(29c), sec.4 and sec.17, which authorize the State Board of Education to promulgate rules regarding hearings on proprietary and driver training schools and cases related to students with disabilities. 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 March 17, 1993. TRD-9320433 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: April 7, 1993 Proposal publication date: January 5, 1993 For further information, please call: (512) 463-9701 Subchapter C. Hearings Held under the Texas Driver and Traffic Safety Education Act 19 TAC sec.157.26 The new section is adopted under the Texas Education Code, sec.21.501 and sec.32.22; 20 United States Code, sec.1415; and Texas Civil Statutes, Article 4413(29c), sec.4 and sec.17, which authorize the State Board of Education to promulgate rules regarding hearings on proprietary and driver training schools and cases related to students with disabilities. 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 March 17, 1993. TRD-9320434 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: April 7, 1993 Proposal publication date: January 5, 1993 For further information, please call: (512) 463-9701 Subchapter B. Specific Appeals to the Commissioner 19 TAC sec.sec.157.64-157.68 The repeals are adopted under Senate Bill 1, sec.2.25, 71st Legislature, Sixth Called Session, which authorizes the State Board of Education to review all rules, other than portions of Chapter 75, under Title 19, Texas Administrative Code, relating to public education. 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 March 17, 1993. TRD-9320430 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: April 7, 1993 Proposal publication date: January 5, 1993 For further information, please call: (512) 463-9701 Subchapter D. Hearings Concerning Handicapped Students 19 TAC sec.sec.157.91-157.98 The repeals are adopted under Senate Bill 1, sec.2.25, 71st Legislature, Sixth Called Session, which authorizes the State Board of Education to review all rules, other than portions of Chapter 75, under Title 19, Texas Administrative Code, relating to public education. 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 March 17, 1993. TRD-9320431 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: April 7, 1993 Proposal publication date: January 5, 1993 For further information, please call: (512) 463-9701 Subchapter AA. General Provisions for Hearings Before the Commissioner of Education 19 TAC sec.sec.157.1041-157.1060 The Texas Education Agency (TEA) adopts new sec.sec.157.1041-157.1060, and 157.1071-157.1074, concerning hearings and appeals. Sections 157.1046, 157. 1049-157.1054, 157.1057-157.1059, and 157.1071-157.1074 are adopted with changes to the proposed text as published in the January 15, 1993, issue of the Texas Register (18 TexReg 287). Sections 157.1041-157.1045, 157. 1047, 157.1048, 157.1055, 157.1056, and 157.1060 are adopted without changes and will not be republished. The new sections are adopted in accordance with the sunset review process mandated by Senate Bill 1, 71st Legislature. The sections govern the proceedings in contested cases and appeals before the commissioner of education. The changes are adopted in response to public comment or are editorial in nature. The sunset review process will result in a clearer, more concise statement of the rules relating to hearings and appeals. The following comments were received regarding adoption of the new sections. Comment: Several commentators opposed the decrease in the time lines for filing an appeal, an answer, exceptions to the proposal for decision, and replies to exceptions. Response: The commissioner accepted these comments and returned to the time lines established in the previous version of the rule. Comment: Several commentators opposed the deletion of the continuance provision which automatically granted the parties a continuance upon agreement of the parties; one commentator approved the change. Response: The commissioner rejected the reinstatement of the original rule based upon docket control needs and the need to streamline the time for conducting the hearing. Comment: One commentator pointed out an incongruity in the rule pertaining to motions for continuance. Response: This rule was modified prior to publication as a proposal and no further action was required. Comment: Several commentators requested that the document filing rule eliminate the requirement that in order to timely file by mail, the document must be mailed one day prior to the deadline. Response: The commissioner accepted this comment. Comment: Two commentators approved of the rule permitting the admission of the local record; several commentators disagreed with the admission of the local record of the board of trustees' hearing on the same basis as a deposition, on the basis that repetitious testimony would be excluded at the hearing before the commissioner, that the hearing before the board of trustees was intimidating to the employee's witnesses, that admission of the record of proceedings should be by agreement, that a record should not be used against a party who had reasonable notice of the proceeding but who was not present at the hearing, and that the local hearing is often tried on a political basis, not a legal basis. Response: The commissioner rejected the request that the provision be withdrawn in its entirety, because it gives both parties an opportunity to reduce costs by offering prior testimony in the cause without the necessity of deposing the witness or paying witness fees or travel expenses to the hearing; the commissioner rejected the request for admission by agreement because that process is currently in use and parties often fail to agree to admit the record; and the commissioner rejected the contention that the nonappearing parties should not be bound by the record of the proceedings because all parties are to have reasonable notice and thus have an opportunity to present or rebut claims. However, the commissioner agreed with one commentator, who asked that the rule be applied prospectively to local hearings held after the effective date of the rule and agreed with a second commentator who asked that persons who testified at the local hearing be permitted to testify before the commissioner if the party presenting the witness wished to call the witness. Comment: Two commentators requested that the provision defining contemptuous conduct as knowingly or recklessly offering or using false evidence be deleted because the party or the attorney may not have reason to know that the evidence was false. Response: The commissioner accepted this comment and deleted the word "recklessly" from the rule. Comment: One commentator requested that the rules pertaining to filing by facsimile be amended to allow filing up to midnight. Response: The commissioner accepted this comment. Comment: One commentator disagreed with the requirement that an answer contain specific denials to each allegation, because many petitions for review contain minor comments that should not require an answer. Response: The commissioner rejected this comment because the specific denials and admissions serve to streamline the process to determine which factual and legal questions are at issue. Comment: One commentator requested that the rules deal with amended or supplemental pleadings. Response: The commissioner rejected this comment as not being a necessary procedure. Comment: Two commentators disagreed with the need for specific discovery sanctions. Response: The commissioner rejected this comment because, in rare cases, the hearings examiner must impose sanctions for discovery abuse or failure to respond in order to assure progress of the proceeding. Also, the provisions were recommended by a committee of administrative law practitioners. Comment: One commentator noted a contradiction in whether a motion to compel discovery was required prior to requesting sanctions. Response: The commissioner accepted this comment and revised the rule to provide the needed clarity that a motion to compel was required. Comment: A commentator questioned which forms of discovery can be initiated without the approval of the hearings examiner, while a second commentator requested a provision that allowed for discovery by any means permitted in the Texas Rules of Civil Procedure. Response: The commissioner rejected these comments because each of the discovery provisions sets forth the prerequisites for acquiring the discoverable information. Comment: One commentator requested that the order of procedure be revised to require that the party with the burden of proof presents its case first. Response: The commissioner rejected this position because the hearings examiner has the inherent authority to allow that the order of presentation be modified in the interests of justice. Comment: One commentator suggested that the Texas Rules of Evidence be incorporated by reference. Response: Both past and current versions of the rules have contained that provision. Comment: One commentator requested that agency appeals be drafted to discourage schools from adopting extremely short time lines for grievances. Response: The commissioner rejected this position as being in excess of his authority. Comment: One commentator requested that all complaints and hearings conducted by the agency, the commissioner, and the State Board of Education be a review of the local record only. Response: The commissioner rejected this comment as requiring a statutory amendment. Comment: One commentator recommended that local boards of trustees be established as the entity within the hearing procedure required to conduct de novo hearings and produce the legal record of the hearings. Response: The commissioner rejected this comment as requiring a statutory amendment. Comment: One commentator requested that substitution of a hearings examiner be permitted only when the original examiner resigns or becomes incapacitated. Response: The commissioner rejected this recommendation because the management of the docket requires the flexibility to reassign cases to a new staff member or to an experienced hearings examiner. Comment: One commentator opposed the definition of hearings examiner on the basis that the commissioner cannot delegate discretionary final actions. Response: The commissioner rejected this position based upon his authority under the Texas Education Code, sec.11.52. Comment: One commentator disagreed with the provision allowing a hearings examiner to align a party with a compatible party if the party representative has been excluded for violating the decorum standards. Response: The commissioner rejected this position because the rules provide the safeguard of an appeal of the issue of whether a party representative can be excluded. During this time, a party can secure a new party representative. Comment: One commentator opposed the requirement that all filings and communications with the agency must be served by certified mail. Response: The commissioner accepted this comment. The rule now allows for any nonpleading communication to be filed and served by first class mail. Comment: A commentator questioned the discovery process and the requirement to file a motion to compel discovery in order to obtain a sanction. The commentator requested that the hearings examiner be specifically prohibited from ordering sanctions on his or her own motion without issuing a motion to compel. Response: The commissioner rejected this position on the basis that the hearings examiner normally would be unaware of a dispute until a party moved for a motion to compel and a sanction. Comment: The commentator also requested that the rule specify that a request to produce documents does not constitute a motion to compel. Response: The commissioner rejected this position as unnecessary; however, the language "discovery motion" in subsection 157.1054(b) was clarified to include the words "motion to compel discovery." Comment: One commentator requested that the motion for rehearing rule contain the provisions contained in the Administrative Procedures and Texas Register Act concerning extending the time for filing and deciding a motion for rehearing. Response: This provision was contained in the proposed rule. Comment: One commentator requested that the definition of notice of final decision contained in the Administrative Procedures and Texas Register Act be included. Response: The commissioner rejected this comment because the Administrative Procedures and Texas Register Act has been incorporated by reference, and because the purpose of placing the motion for rehearing provisions in the rules was to fully inform pro se litigants and other less experienced party representatives of the procedures required for judicial appeal. Comment: One commentator requested a provision allowing for hearings outside of Austin. Response: The commissioner rejected the comment at this time due to lack of funding and staff. Comment: One commentator requested that the commissioner be established as the first appellate level in Term Contract Nonrenewal Act appeals. Response: The commissioner rejected this position as requiring a statutory change. Comment: One commentator requested that the notice of proposed nonrenewal be included in the record of the nonrenewal proceedings. Response: The commissioner accepted this comment. Comment: One commentator asserted that the provisions governing appeals under the Term Contract Nonrenewal Act should not be conducted on the basis of the record created at the hearing before the board of trustees, and if the record was to be used, that various conditions be imposed upon the use. Response: The commissioner rejected this comment on the basis that this process had been in place for thirteen years without invalidation. Comment: One commentator disagreed with the requirement that reasonable follow up measures be undertaken to secure a witness' testimony at the local hearing as being vague. Response: The commissioner rejected this comment because the party should undertake some further action to confirm the witness' appearance or nonappearance. Comment: Another commentator felt that this provision would too easily allow additional testimony at the commissioner's level. Response: The commissioner rejected this comment because the intent of the rule to balance the positions of the parties was served. Comment: One commentator requested that the certified transcription of the nonrenewal hearing before the board of trustees be taken by a certified court reporter. Response: The commissioner accepted this comment. Comment: One commentator requested that corrections to the nonrenewal transcript be broadened to include corrections to the entire record of the proceeding. Response: The commissioner accepted this comment. Comment: One commentator requested that briefs be allowed in nonrenewal proceedings before the commissioner. Response: The commissioner accepted this comment. Comment: One commentator disagreed with the inclusion of instances in which the commissioner may substitute his judgment for that of the board of trustees in a nonrenewal proceeding. Response: The commissioner rejected this position because the commissioner has authority to correct the unlawful actions of the board in these instances. A public hearing was held on February 10, 1993, before the commissioner of education. Several individuals and the following groups presented testimony: the Texas Classroom Teachers Association, the Texas Association of School Boards, the Texas State Teachers Association, and the Association of Texas Professional Educators. Several individuals and the following organizations submitted written comments: the Texas State Teachers Association and the Texas Classroom Teachers Association. In public hearing prior to publication of the rules as proposed, several individuals and the following organizations submitted comments: the Texas Classroom Teachers Association, the Houston Independent School District, the Association of Texas Professional Educators; and the Texas State Teachers Association. The new sections are adopted under The Texas Education Code, sec.11.13, which provides for appeals before the commissioner; and Texas Civil Statutes, Article 6252-13a, sec.3 and sec.4, which authorize the State Board of Education to adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available. sec.157.1046. Conduct and Decorum. (a) Standards of conduct during adjudicative proceedings. (1) The hearings examiner and the party representative should refer to the Texas Disciplinary Rules of Professional Conduct for guidance, regardless of whether all participants are licensed attorneys (Texas State Bar Rules, Article 10, sec.9). (2) Party representatives shall maintain high standards of professionalism during the administrative process and promote an atmosphere of civility and fairness. (3) A party representative shall use these rules for legitimate purposes and not for dilatory purposes or to harass or intimidate other participants. (b) Exclusion or disqualification of party representatives. (1) Contemptuous conduct. A hearings examiner may exclude or disqualify a party representative from participating in an agency hearing for contemptuous conduct. The hearings examiner shall warn the party representative prior to exclusion, if possible. Contemptuous conduct includes: (A) actual or threatened physical assault of any participant to the proceeding; (B) knowingly or recklessly making a false statement of material fact or law to the hearings examiner; (C) counseling or assisting a witness to testify falsely; (D) knowingly offering or using false evidence; (E) filing a frivolous or knowingly false pleading or other document, or filing a frivolous or knowingly false defense. A frivolous filing is one: (i) primarily for the purpose of harassing or maliciously injuring another person; or (ii) for which the party representative is unable to make a good faith argument consistent with existing law, or a good faith argument for an extension, modification, or reversal of existing law; (F) paying, offering to pay, or acquiescing in a payment or offer of payment to a witness based on the content of the witness' testimony or the outcome of the proceeding; (G) continually violating an established rule of agency procedure or of evidence; (H) raising superfluous objections or otherwise unreasonably delaying the proceeding or increasing the costs or other burdens of the proceeding; (I) misrepresenting, mischaracterizing, or misquoting facts or law to gain unfair advantage; (J) except as otherwise permitted by law, communicating or causing someone else to communicate with the hearings examiner without the knowledge and consent of opposing party representatives in order to gain unfair advantage or to influence the proceeding; (K) using vulgar or abusive language during the proceeding; and (L) engaging in disruptive conduct. (2) Conflicts of interest. A hearings examiner may disqualify a party representative from participating in a proceeding if the hearings examiner decides that the party representative has a conflict of interest. Conflicts of interest can be, but are not limited to, the following: (A) when a party representative who previously acted as a public officer or employee on a matter later attempts to represent a private client on the same matter, unless the appropriate government agency consents; (B) when a party representative who serves as a public officer or employee on a matter negotiates for private employment with a party or party representative involved in the same matter; (C) when a party representative who serves as a public officer or employee participates in a matter involving a former private client whom he or she represented on the same matter, unless no one may legally act in the attorney's stead; (D) when an attorney engages in the practice of law while under suspension or in violation of a disciplinary order or judgment; and (E) any other conflict of interest that, in the opinion of the hearings examiner, offends the dignity and decorum of the proceeding. (3) Procedures for excluding or disqualifying a party representative. (A) Notice. The hearings examiner shall state the specific reason for excluding or disqualifying a party representative on the record or in a written order. The hearings examiner shall notify the affected party and party representative of the exclusion or disqualification personally or by certified mail. (B) Reasonable time for substitution. After the hearings examiner has excluded or disqualified a party representative, the affected party or party representative shall have reasonable time to appeal to the commissioner. If the commissioner sustains the exclusion or disqualification, the party shall have a reasonable time to substitute a new representative. In determining a reasonable time, the hearings examiner shall consider the right of opposing parties to have the proceeding resolved without undue delay. The hearings examiner may therefore align the affected party with another party in interest instead of permitting a substitution. (C) Appeal to the commissioner. A party or party representative may appeal the exclusion (if it is for a period of more than eight hours) or disqualification to the commissioner. The motion shall be filed with the commissioner within five working days after actual notification of the exclusion or disqualification. If the commissioner does not act within ten days after the motion is filed, the motion is overruled by operation of law. The commissioner may, however, extend the time for taking action on the motion. (D) No further participation. After being disqualified from a proceeding, a party representative may not provide further assistance, either directly or indirectly, to any party with regard to the proceeding, except to the extent reasonably necessary to appeal to the commissioner and to complete the withdrawal and substitution of a new party representative. (E) No recusal. The exclusion or disqualification of a party representative by a hearings examiner is not a ground for recusal of the hearings examiner in the same or any subsequent proceeding. sec.157.1049. Service of Documents. (a) Every pleading, plea, or motion, filed with the division of hearings shall be served by delivering a copy to all party representatives of record either in person or by agent or by courier receipted delivery or by certified or registered mail, to the party's current address of record, or by facsimile to the recipient's current telecopier number of record. All party representatives shall be served by the same method as the document was filed with the agency. Service by facsimile may be substituted for personal service. (b) All other communications not specified in sec.157.1047 of this title (relating to Classification of Pleadings) filed with the division of hearings may be served by first class mail. (c) Service by mail shall be complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service. (d) Service by facsimile completed after midnight local time of the recipient shall be deemed served on the following day. (e) The party representative shall certify to the hearings examiner compliance with this rule in writing over the signature of the party representative on the filed instrument. sec.157.1050. Filing of Documents. (a) Any document shall be deemed filed only when actually received by the director of hearings and appeals, the assigned hearings examiner, or the designated docket clerk. (b) Documents may be filed by mail if sent by certified United States mail, return receipt requested, or by an overnight courier service. A document shall be deemed timely filed if it is mailed on the filing deadline as evidenced by a legible postmark placed on the envelope by the United States Postal Service and the document was received by the director of hearings, the hearings examiner, or the designated docket clerk by the close of business on the third calendar day following the filing deadline. (c) Facsimile transmission of pleadings by telecopier to the division of hearings, in proper form, containing a facsimile of the signature of the party representative filing the pleading, constitutes filing. Parties shall not mail a duplicate of the transmitted document. Filing by facsimile completed after midnight Austin, time shall be deemed filed on the following business day. sec.157.1051. Petition for Review. (a) Except where otherwise provided by law, the petitioner shall file with the commissioner a petition for review within 45 calendar days after the decision, order, or ruling complained of is first communicated to the petitioner. In all cases, when a decision is announced in the presence of the petitioner or the petitioner's representative of record at a hearing, the announced decision shall constitute communication to the petitioner. (b) A petition for review shall contain the following: (1) a description of the ruling, action, or failure to act complained of; (2) the date of the ruling, action, or failure to act; (3) a precise description of the action the petitioner wants the commissioner to take on the petitioner's behalf; (4) a statement of the reason the petitioner is entitled to have the commissioner take action; (5) a statement of the facts of which the petitioner is aware or which the petitioner believes to be true, which would lead to a reasonable conclusion that the petitioner is entitled to the relief sought; and (6) the name, mailing address, telephone number of the petitioner's party representative during business hours, and facsimile number, if any. (c) Nothing in this section requires the petitioner to plead all evidence relied upon. However, all issues relied upon by the petitioner must be raised in the petition for review, and the petitioner will be denied the opportunity to present evidence on issues not raised in the petition for review. (d) The petition for review shall be served on the respondent by personal delivery or by certified mail. A certificate evidencing service shall be included in the petition for review. sec.157.1052. Answers. (a) The respondent shall file an answer within 30 calendar days after receiving notice from the commissioner that an appeal has been docketed. (b) The answer shall specifically admit or deny each allegation in the petition for review and shall set forth all affirmative defenses. (c) The answer shall contain the name of the respondent or the respondent's party representative, the mailing address, telephone number during business hours, and facsimile number, if any. (d) All well-pled factual allegations will be deemed admitted unless the respondent's answer, containing specific denials to each allegation, is filed within the time period prescribed in subsection (a) of this section. A general denial shall not be sufficient to controvert factual allegations contained in the petition for review. sec.157.1053. Prehearing Conference. (a) In any appeal, the hearings examiner or a party may move for the setting of a prehearing conference. The hearings examiner shall direct the parties to appear, either in person or by telephone, at a specific time for a conference prior to a hearing on the merits for the purposes of considering any of the following: (1) the formulation or simplification of issues; (2) admission of certain assertions of fact or stipulations; (3) the procedure at the hearing on the merits; (4) any limitation, where possible, of the number of witnesses; and/or (5) such other matters as may aid in the simplification of the proceeding or the disposition of matters in controversy, including the settlement of matters in dispute. (b) Action taken at the conference shall be recorded in the manner directed by the hearings examiner. sec.157.1054. Discovery. (a) Permissible forms of discovery are: (1) oral or written deposition governed by Texas Civil Statutes, Article 6252- 13a, sec.14; (2) written interrogatories to a party governed by Rule of Civil Procedure 168; (3) requests of a party for admission of facts and the genuineness or identity of documents or things governed by Rule of Civil Procedure 169; (4) requests and motions for production, examination, and copying of documents or other tangible materials governed by Texas Civil Statutes, Article 6252-13a, sec.14a; (5) requests and motions for entry upon and examination of real property governed by Texas Civil Statutes, Article 6252-13, sec.14a; and (6) motions for a mental or physical examination of a party or person under the legal control of a party governed by Rule of Civil Procedure 167a. (b) Any motion to compel discovery shall contain a certificate by the party filing the motion that efforts to resolve the discovery dispute without the necessity of agency intervention have been attempted and failed. (c) Requirements concerning discovery sanctions include the following. (1) Motions for sanctions or order compelling discovery. Upon reasonable notice to all party representatives and affected persons, a party may apply to the hearings examiner for an order compelling discovery. A party may not request sanctions under paragraph (3) of this subsection without having first obtained an order compelling discovery. (2) Enforcement in district court. If a person fails to comply with a subpoena or a commission for deposition issued by a hearings examiner, the agency or party requesting the subpoena or commission for deposition may seek its enforcement in district court in any manner provided by law. (3) Failure to comply with order or with discovery request. If a party; or an officer, director, or managing agency of a party; or a person designated to testify on behalf of a party fails to comply with proper discovery requests or to obey an order compelling discovery, a hearings examiner may, after opportunity for hearing, make orders in response to the failure, including any of the following orders: (A) preventing the disobedient party from further discovery of any kind, or of a particular kind; (B) deeming any facts pertaining to the order, or any other facts, to be established, as claimed by the moving party; (C) disallowing the disobedient party from supporting or opposing designated claims or defenses, or prohibiting the party from introducing designated matters in evidence; and (D) striking out pleadings or parts of pleadings, staying further action until the order is obeyed; dismissing the proceeding with or without prejudice; or rendering a judgment against the disobedient party. (4) Abuse of discovery process. The hearings examiner may impose any of the sanctions listed above on a party who abuses the discovery process in seeking or resisting discovery or who files a request, response, or answer that is frivolous, oppressive, or made for the purpose of delay. (5) Failure to respond to or supplement discovery. A party who fails to respond to or supplement a discovery request or refuses to supplement a response to a discovery request may not present evidence that the party was under a duty to provide in a response or supplemental response, and may not offer the testimony of an expert witness or of any other person having knowledge of the discoverable matter, unless the hearings examiner finds good cause to permit the evidence despite the noncompliance. The burden of establishing good cause is upon the party offering the evidence, and good cause must be shown in the record. (6) Impermissible communications. Unless permitted by law, party representatives shall not communicate with the hearings examiner or the commissioner without the knowledge of all other parties. The hearings examiner or commissioner may impose any of the preceding sanctions for impermissible communication. (7) Record of basis for sanction. The hearings examiner shall state the specific basis for any sanction in the record or in a written order. A sanctioned party has the right to appeal the sanction to the commissioner in accordance with sec.157.1046(b)(3) (C) of this title (relating to Conduct and Decorum). sec.157.1057. Order of Procedure at Hearing. (a) The petitioner may state briefly the nature of the claim or defense, what the petitioner expects to prove, and the relief sought. Immediately after, the respondent may make a similar statement, and the intervenors and other parties will be afforded similar rights as determined by the hearings examiner. (b) Evidence shall then be introduced by the petitioner. The respondent and intervenors shall have the opportunity to cross-examine each of the petitioner's witnesses. (c) Cross-examination is not limited solely to matters raised on direct examination. Parties are entitled to redirect and recross examination. (d) Unless the statement has already been made, the respondent may briefly state the nature of the claim or defense, what the respondent expects to prove, and the relief sought. (e) Evidence, if any, shall be introduced by the respondent. The petitioner and intervenors shall have the opportunity to cross-examine each of the respondent's witnesses. (f) The intervenor and other parties may make their statement, unless they have already done so, and shall introduce their evidence, if any. The petitioner and respondent shall have the opportunity to cross-examine the intervenor's witnesses. (g) The petitioner may present rebuttal evidence. (h) The parties may be allowed closing arguments at the discretion of the hearings examiner. (i) The hearings examiner may permit deviations from this order of procedure in the interests of justice. (j) Parties shall provide four copies of each exhibit offered. (k) At the hearing before the commissioner, any part or all of a certified transcript of sworn testimony and exhibits taken in a hearing before the board of trustees from which the petitioner appeals may be used by any party for any purpose against any party who was present or represented at the hearing before the board of trustees or who had reasonable notice of the meeting. The Texas Rules of Civil Evidence shall be applied to each question and answer as though the witness were then present and testifying. Unavailability of a witness is not a requirement for admissibility. Testimony of a witness in the hearing before the commissioner shall not be precluded solely because the testimony is contained in the record of the hearing before the board of trustees. This subsection applies only to records of hearings held before a board of trustees after the effective date of this section. (l) In any appeal where a party is represented by more than one attorney, a lead attorney must be designated. sec.157.1058. Filing of Exceptions and Replies to Proposal for Decision. (a) A copy of the proposal for decision in a contested case shall be simultaneously delivered or mailed by certified mail, return receipt requested, to each party representative of record. (b) Exceptions to the proposal for decision shall be filed within 30 calendar days of the date of the proposal for decision. (c) Replies to exceptions shall be filed within 50 calendar days of the date of the proposal for decision. (d) All disagreements with the factual findings of the proposal for decision must be made in the parties' exceptions to the proposal for decision or be waived. (f) The exceptions shall be specifically and concisely stated. The evidence relied upon shall be stated with particularity, and any evidence or arguments relied upon shall be grouped under the exceptions to which they relate. sec.157.1059. Orders. After the time for filing exceptions and replies to exceptions expires, the hearings examiner's proposal for decision will be considered by the commissioner and either adopted or modified and adopted. All final decisions or orders of the commissioner shall be in writing and signed. A final decision shall include findings of fact and conclusions of law separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. Party representatives shall be simultaneously notified either personally, by certified mail, or by facsimile transmission of each decision or order. 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 March 17, 1993. TRD-9320435 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: April 7, 1993 Proposal publication date: January 15, 1993 For further information, please call: (512) 463-9701 Subchapter BB. Specific Appeals to the Commissioner 19 TAC sec.sec.157.1071-157.1074 The new sections are adopted under the Texas Education Code, sec.11.13, which provides for appeals before the commissioner; and Texas Civil Statutes, Article 6252-13a, sec.3 and sec.4, which authorize the State Board of Education to adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available. sec.157.1071. Proceedings Brought Under the Term Contract Nonrenewal Act. (a) This section shall apply in all appeals brought under the Term Contract Nonrenewal Act (Texas Education Code, sec.21.201 et seq). To the extent that this section conflicts with any other sections governing proceedings before the commissioner, the requirements in this section shall prevail. (b) All allegations by the teacher that the decision of the board of trustees was arbitrary, capricious, unlawful, or not supported by substantial evidence shall be decided upon a review of the record of the proceeding of the board of trustees as required by the Texas Education Code, sec.21.205(b); however, on the motion of either party, the hearings examiner may order that additional evidence be taken to supplement the transcript if it appears that the party has evidence to offer that is material, relevant, and not unduly repetitious, that the party, for good cause, was unable to adduce at the local hearing. Good cause for failure to secure the testimony of a witness may be demonstrated by: (1) a clear and unambiguous communication to the witness of the party's intention to call the witness at the hearing; (2) reasonable notice to the witness of the date, time, and place of the board meeting at which the testimony will be required; and (3) such reasonable follow-up measures as an ordinarily prudent person would exercise to secure the attendance of a material witness at a hearing before the board of trustees. (c) In all nonrenewal cases, the school district must file a record of the proceeding before the board of trustees that includes a certified court reporter transcription of the hearing before the board of trustees; the policies on evaluation, nonrenewal, and administrative recommendations concerning nonrenewal; the notice to the employee of the proposed nonrenewal; the request for a local hearing; and all documents and exhibits filed in the local proceeding. The school district shall provide the teacher with written notice when the record of appeal is prepared and shall make the record available to the teacher for inspection. The school district shall provide the teacher with copies of all items in the record other than the transcript. A copy of the transcript shall be provided to the teacher upon request for a reasonable charge. (d) The record of the proceeding filed by the school district shall be considered complete and accurate and shall be admitted into evidence before the commissioner for all purposes, unless the petitioner files objections to the record within 30 days after the date of filing of the record that set forth specifically those items that are relevant and material and that have been erroneously omitted from the record or those portions of the record that are relevant and material but that have been inaccurately transcribed. The commissioner may conduct a proceeding for the purpose of receiving evidence relevant to any such challenge to the record if it appears that the matter in dispute is material to the outcome of the appeal. (e) Allegations in the petition for review that the decision of the board of trustees was arbitrary, capricious, or unlawful must allege sufficient facts that would support a holding that the board of trustees' decision was arbitrary, capricious, or unlawful, even if it should also be held that the decision was supported by substantial evidence. If such factual allegations are not made, no cause of action will be stated regarding these claims. (f) Upon either party's request, the commissioner shall afford both parties the opportunity to present oral argument and/or briefs concerning the merits of the appeal. (g) The commissioner of education may substitute his or her judgment for that of the board of trustees upon finding that the board of trustees' decision was arbitrary, capricious, unlawful, or not supported by substantial evidence including, but not limited to, the following circumstances: (1) where the written notice that the teacher's nonrenewal was under consideration was not given to the petitioner by April 1. Notice sent by certified mail, addressed to the last known address of the teacher, postmarked by the United States Postal Service on or before March 25, will be considered timely; (2) where the written notice to the teacher failed to state the reasons for the action under consideration; (3) where the required notice failed to state the reasons in a manner sufficient to allow the teacher the opportunity to adequately prepare a response at the local hearing to the allegations in the notice, and the teacher, at the time the teacher requested a hearing, set forth clearly in writing any deficiencies in the notice, and any such deficiencies were not promptly corrected prior to the date of the hearing; (4) where the evidence adduced at the local hearing does not support the specific reasons of which the teacher was given written notice; (5) where the teacher requested a hearing within 10 days after receiving the required notice, and the hearing was not held within 15 days after the request was received, except as provided in this subsection. The teacher may waive his or her right to be heard within 15 days by written agreement. If the school district, within five days of receiving the request for hearing, schedules the hearing for a date outside the 15-day period, the teacher will be deemed to have consented to that date, unless the teacher files an objection to that date within three days after receiving notice from the district; (6) where the school district fails to provide the commissioner with a certified transcript of the local hearings; (7) where the decision of the local board was not supported by substantial evidence that would have been admissible in an evidentiary hearing before the agency; (8) where no written evaluation of the teacher was prepared by the administration, or where the board of trustees failed to consider the administration's evaluation of the teacher prior to its decision not to renew the teacher's term contract as required by the Texas Education Code, sec.21.202. The board of trustees is not bound by the administrator's evaluation, but the evaluation must be considered; (9) where the reason for nonrenewal was not set forth in writing in the school district's policies as required by the Texas Education Code, sec.21.203(b); (10) where the nonrenewal is based on a reason contained in a policy that was adopted so recently prior to its use as a reason for nonrenewal that the teacher did not have fair opportunity to conform his or her conduct accordingly; and (11) where the board of trustees prevented the teacher from introducing at the local hearing admissible evidence that was material, relevant, and not unduly repetitious. (h) Except concerning those matters specifically agreed to, a teacher does not waive any right to raise any procedural defect or substantive issue on appeal simply by participating in the hearing before the board of trustees; however, any procedural defect known at the time of the hearing and not presented by the teacher at the hearing is waived, unless good cause is shown for the failure to present the defect. sec.157.1072. Hearings Concerning Complaints Made to the Teachers' Professional Practices Commission of Texas. (a) This section shall apply to hearings concerning complaints made to the Teachers' Professional Practices Commission of Texas (TPPC). To the extent that this section of the rules adopted by TPPC conflict with any other sections governing proceedings before the commissioner of education, the requirements of this section shall prevail. (b) When a complaint is received by TPPC, the director of TPPC will consult with the attorney assigned to TPPC to discuss the jurisdictional determination. If the attorney believes that the facts alleged, even if true, would not constitute a violation of the code of ethics, the attorney shall advise the director of that opinion in writing. In addition, the commissioner or his or her hearing examiner may, at any time, advise the TPPC of their opinions concerning the issue of jurisdiction. (c) Upon being notified by TPPC that it has accepted jurisdiction of a complaint, the commissioner shall appoint a hearing examiner to preside over the proceeding and an attorney to advise TPPC at the hearing. (d) The rules of evidence shall be liberally construed at any hearing conducted under this section, and all evidence shall be admitted, unless: (1) it is clearly irrelevant, immaterial, or unduly repetitious; (2) its evidentiary value is clearly outweighed by its tendency to prejudice the fact finder against a particular party or witness; or (3) it is otherwise clearly inadmissible for any purpose. (e) Parties who are not represented by counsel shall not be placed at a disadvantage by the fact that they are unfamiliar with courtroom procedure. Whenever such a party is prevented from presenting relevant evidence by objections unrelated to the admissibility of that evidence, the attorney assigned by the commissioner to assist TPPC may explain to that party the proper method of presenting the evidence. (f) After the parties have concluded their examination of any witness, TPPC and the hearing examiner may ask any questions that are necessary and proper to enable them to understand fully the witness's testimony. (g) After both parties have presented their evidence and argument, the hearing examiner may discuss any aspect of the case freely with the TPPC during its deliberations. (h) The commissioner may receive a recommendation from TPPC that any of the following actions be taken regarding the complaint in part or in its entirety: (1) that the complaint be dismissed; (2) that the respondent be issued a warning to be made a part of the respondent's file kept by the Texas Education Agency division responsible for educational personnel records; (3) that the respondent be issued a reprimand to be made a part of the respondent's file kept by the educational personnel records division; (4) that the respondent be issued a reprimand to be made a part of the respondent's file kept by the educational personnel records division and inscribed on the respondent's Texas teacher certificate, with notification of the reprimand to be provided to all superintendents of all school districts in the State of Texas and to certification officers in each state or territory of the United States by the educational personnel records division; (5) that the respondent's certificate be suspended for a period not to exceed one year; or (6) that the respondent's certificate be revoked. (i) After receiving the TPPC's recommendation, the commissioner shall give the parties the opportunity to respond to the recommendation in the manner set forth in sec.157.1058 of this title (relating to Filing of Exceptions and Replies to a Proposal for Decision). (1) No additional evidence may be presented following the TPPC's recommendation without good cause, other than lack of diligence, as determined by the commissioner. (2) If the commissioner determines that it is necessary to take additional evidence, TPPC and the parties shall be notified of the hearing date. Those members of TPPC who participated in the initial hearing may participate to the same extent in the hearing to receive additional evidence, and after hearing the additional evidence, shall be given an opportunity to file an amended recommendation to the commissioner. (j) If TPPC recommends that the complaint be dismissed or that the respondent be issued a warning or reprimand to be kept on file by the DEPR, the commissioner may adopt that recommendation with no further proceedings if it is supported by substantial evidence in the hearing transcript. Prior to taking any action other than that recommended by TPPC, the commissioner shall instruct the hearing examiner to prepare a proposal for decision pursuant to subsection (k) of this section. (k) If TPPC recommends that the respondent's certificate be suspended or revoked, or that the respondent be publicly reprimanded, the hearing examiner shall enter a proposal for decision. The hearing examiner may adopt the TPPC's recommendation in whole or in part in the proposal. The parties shall be given an opportunity to respond to the proposal pursuant to sec.157.1058 of this title. After receiving TPPC's recommendation, the hearing examiner's proposal for decision, and the parties' exceptions and replies, the commissioner shall take whatever action he or she deems appropriate. (l) In any case in which the hearing examiner's recommendation is different than that of TPPC, the commissioner shall schedule a conference concerning the matter with the hearing examiner and a representative of the TPPC prior to issuing a decision. The TPPC shall be given 10 days' notice of the conference. sec.157.1073. Proceedings Concerning the Suspension or Cancellation of a Certificate or Permit by a District or the Agency. (a) This section shall apply to all proceedings concerning the sanction of any certificate or permit issued by the commissioner of education other than proceedings brought to the commissioner by the Teachers' Professional Practices Commission of Texas (TPPC). To the extent that this section conflicts with any other section governing proceedings before the commissioner, the provisions of this section shall prevail. (b) A complaint may be filed at any time by a school district or the Texas Education Agency division responsible for educational personnel records as petitioner requesting the commissioner to sanction a certificate or permit issued by the agency. Any complaint must clearly set forth facts that would justify taking such action and set forth with specificity the sanction sought to be imposed. This complaint shall constitute, and its contents shall be subject to, the rules governing petitions for review. Sanctions include: (1) that the respondent be issued a warning to be made a part of the respondent's file kept by the educational personnel records division; (2) that the respondent be issued a reprimand to be made a part of the respondent's file kept by the educational personnel records division; (3) that the respondent be issued a reprimand to be made a part of the respondent's file kept by the educational personnel records division and inscribed on the respondent's Texas teacher certificate, with notification of the reprimand to be provided to all superintendents of all school districts in the state of Texas and to certification officers in each state or territory of the United States by the DEPR; (4) that the respondent's certificate be suspended for a period not to exceed one year; or (5) that the respondent's certificate be revoked. (c) The respondent shall file an answer that complies with sec.157.1052 of this title (relating to Answers). All well-pled factual allegations will be deemed admitted unless the respondent's answer, containing specific denials to each allegation, is filed within the time period prescribed in sec.157.1052(a) of this title. A general denial shall not be sufficient to controvert factual allegations contained in the petition for review. (d) After receipt of the respondent's answer, the commissioner shall schedule a hearing at which all parties shall have the opportunity to present evidence and argument concerning the merits of the complaint. (e) The burden of proof at any such hearing will be on the petitioner or petitioner/intervenor to prove its allegations by a preponderance of the evidence. sec.157.1074. Student Appeals. (a) This section shall apply in all appeals brought by students from actions or decisions of a local board of trustees pursuant to the Texas Education Code, sec.11.13(b). To the extent that this section conflicts with any other section governing proceedings before the commissioner, the provisions of this section shall prevail. (b) In all cases, the school district must file a record of the proceedings before the board of trustees with its answer. The record of the proceedings must include all policies relevant to the appeal, all written correspondence between the district's representatives and the student (or the student's parents or representatives) concerning the matter appealed, and a certified transcript of the local hearing on the matter. The school district shall notify the student in writing when the record of appeal is prepared and make the record available to the student for inspection. The school district shall provide the student with copies of all items in the record other than the transcript. A copy of the transcript shall be provided to the student for a reasonable charge upon request. (c) The commissioner's decision shall be based on a review of the record of the proceedings before the board of trustees; however, on the motion of either party, the commissioner may order that the record be reopened to supplement the transcript if it appears that the party has evidence to offer that is material, relevant, and not unduly repetitious, that the party, for good cause, was unable to adduce at local hearing. Good cause for failure to secure the testimony of a witness may be demonstrated by: (1) a clear and unambiguous communication to the witness of the party's intention to call the witness at the hearing; (2) reasonable notice to the witness of the date, time, and place of the board meeting at which the testimony will be required; and (3) such reasonable follow-up measures as an ordinarily prudent person would exercise to secure the attendance of a material witness at a hearing before the board of trustees. (d) The record of the proceedings shall be considered complete and accurate and shall be admitted into evidence before the commissioner for all purposes, unless within 30 days of the date of filing the record, the student files objections to the record that set forth specifically the items that are relevant and material and that have been erroneously omitted from the record or the portions of the record that are relevant and material but have been inaccurately transcribed. The commissioner shall conduct a proceeding to receive evidence relevant to any such challenge to the record if it appears that the matter in dispute is material to the outcome of the appeal. (e) If the record of the proceedings does not contain a certified transcript of the local hearing, the commissioner may either reverse the school district's decision without a hearing, or conduct a hearing to receive evidence concerning all material facts in dispute. (f) Upon either party's request, the commissioner shall afford both parties the opportunity to file briefs and present oral argument concerning the merits of the appeal. (g) The commissioner may substitute his or her judgment for that of the board of trustees only when the board's decision was arbitrary, capricious, unlawful, or not supported by substantial evidence. (h) Cases in which the student's education is being disrupted in any manner pending the outcome of the appeal may be expedited. 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 March 17, 1993. TRD-9320436 Criss Cloudt Director of Policy Planning and Evaluation Texas Education Agency Effective date: April 7, 1993 Proposal publication date: January 15, 1993 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS Part XXIII. Texas Real Estate Commission Chapter 535. Provisions of the Real Estate License Act Mandatory Continuing Education 22 TAC sec.535.71, sec.535.72 The Texas Real Estate Commission adopts amendments to sec.535.71, concerning approval of mandatory continuing education (MCE) providers, courses, and instructors and sec.535.72, concerning presentation of courses, advertising, and records. Section 535.71 is adopted with changes to the proposed text as published in the February 2, 1993, issue of the Texas Register (18 TexReg 631). Section 535.72 is adopted without changes and will not be republished. The amendment to sec.535.71 adopts by reference a series of revised forms used by MCE applicants and providers. A number of minor changes have been made in the forms to request additional information or reword questions, and two forms relating to course schedules and schedule changes have been discontinued. Two new forms are adopted to permit real estate licensees to request MCE credit for courses approved by another state or by the State Bar of Texas. The amendment also clarifies that providers offering a course originally approved for another provider must use all materials required in the original course. The amendment permits MCE credit to be given for specific core real estate courses, and MCE courses can be used to satisfy relicensing or salesman annual education requirements. A number of comments were received regarding the proposed amendment to sec.535.71(m) which would have required MCE providers to furnish students with a course outline and bibliography. The commenters suggested that providers furnish students with all written materials which are the basis for a course. In response to these comments the commission did not amend sec.535.71(m); the existing section will require providers to continue to furnish students with printed material which is a basis for a substantial portion of the course. The amendment to sec.535.72 eliminates requirements for MCE providers to file course schedules or changes to course schedules. Providers may not use enrollment agreements in lieu of precourse announcements about required attendance. Restrictions on use of facilities and use of business names were removed. Providers who charge separate fees for course materials will be required to include the fees in advertisements of the course. The amended section also provides guidelines for instructors to receive credit once for each course for the portion taught by the instructor. Credit may only be given for the remainder of the course if the instructor attends all the course. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which provide the Texas Real Estate Commission with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.535.71. Mandatory Continuing Education: Approval of Providers, Courses and Instructors. (a)-(b) (No change.) (c) The commission adopts by reference the following forms published and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188: (1) MCE Form lA-1, MCE Provider Application; (2) MCE Form lB-1, MCE Provider Application Supplement; (3) MCE Form 2-2, MCE Principal Information Form; (4) MCE Form 3A-1, MCE Course Application; (5) MCE Form 3B-2, MCE Course Application Supplement; (6) MCE Form 3C-1, MCE Single Course Offering Application; (7) MCE Form 4A-2, MCE Instructor Application; (8) MCE Form 4B-2, MCE Instructor Application Supplement; (9) MCE Form 7-0, MCE Course Completion Card; (10) MCE Form 8-2, MCE Course Completion Roster; (11) MCE Form 9-2, MCE Correspondence Course Reporting Form; (12) MCE Form 10-0, MCE Out of State Course Credit Request; (13) MCE Form 11-3, MCE Instructor Credit Request; and (14) MCE Form 12-0, State Bar Course Credit Request. (d) (No change.) (e) To be approved to offer a classroom course for MCE credit, the provider must satisfy the commission that the course subject matter is appropriate for a continuing education course for real estate licensees and that the information provided in the course will be current and accurate. (1) A provider applicant must submit an MCE Form 3A-1, MCE Course Application, the first time approval is sought to offer an MCE course. Once a course has been approved, no further approval is required for another approved provider to offer the same course. Prior to advertising or offering the course, however, the subsequent provider must complete MCE Form 3B-1, file the form with the commission, and receive written or oral acknowledgment from the commission that all necessary documentation has been filed. Providers must submit an instructor's manual for each proposed course. A copy of the previously approved instructor's manual must also be submitted for each previously approved course the provider intends to offer. Subsequent providers must offer the course as originally approved or as revised with the approval of the commission and must use all materials required in the original or revised course. The commission will publish guidelines to aid providers in the development of instructor manuals. Each manual must contain the following: (A)-(G) (No change.) (2) The commission may approve a course for a single offering without regard to the requirements of paragraph (1) of this subsection. The provider must be approved by the commission in accordance with the provisions of this section. The course may not be offered again during a providership unless the course has been approved by the commission for subsequent offerings by the original provider in accordance with the provisions of this section. The provider must submit MCE Form, 3C-1, MCE Single Course Offering Application. (f) To be approved as an instructor of any MCE course, a person must satisfy the commission as to the person's competency in the subject matter to be taught and ability to teach effectively. An instructor applicant must submit through the proposed provider an MCE Form 4A-2, MCE Instructor Application, the first time approval is sought to teach an MCE course. For subsequent approval to teach a different course, an MCE Form 4B-2, MCE Instructor Application Supplement, must be submitted. Once an instructor has been approved to teach a course, no further approval is required for the instructor to teach the same course for another provider, although the subsequent provider must complete MCE Form 4B-2 and file the form with the commission prior to using the instructor in the course. (1) (No change.) (2) The commission may also approve an instructor for a single offering of a course. The provider must submit an MCE Form 3C-1, MCE Single Course Offering Application, and provide additional information about the instructor's qualifications at the commission's request. (g) (No change.) (h) Fees shall be established by the commission in accordance with the provisions of the Real Estate Licensing Act, sec.7A, at such times as the commission deems appropriate. Fees are not refundable and must be submitted in the form of a cashier's check or money order, or, in the case of state agencies, colleges, or universities, in a form of payment acceptable to the commission. If a provider seeks approval to offer a course previously approved for another provider, and less than one year remains for the course to be offered, the filing fee shall be one-half the current fee for approval of a course. Provided, however, the full current fee is required for an application for approval of a single course offering. (i)-(k) (No change.) (l) A course must be devoted to one or more of the subjects specified under the course titles in the Act, sec.7(a)(2) -(4) and sec.7(a)(7)-(9), to real estate professionalism and ethics or to other subjects approved by the commission for MCE credit. MCE courses must be presentations of relevant issues and changes within the subject areas as they apply to the practice of real estate in the current market. The commission shall periodically publish lists of subjects other than legal topics which are approved for MCE credit. Courses approved by the commission for prelicensing education or salesman annual education requirements provided in the Act, sec.7(d) and (e), may be accepted for satisfying MCE requirements provided the student attended the entire course, and MCE courses may be accepted by the commission as real estate related courses for satisfying the education requirements of the Act, sec.7(d) and (e). The commission may not approve a course which promotes the sale of goods or services by the provider or by a vendor affiliated or associated with the provider. Providers may sell educational materials, such as textbooks or recordings, related to the subjects of the course. (m)-(p) (No change.) (q) To be approved to offer a correspondence course for MCE credit, the provider must satisfy the commission that the course subject matter is appropriate for a continuing education course for real estate licensees and that the information provided in the course will be current and accurate. An applicant must submit an MCE Form 3A-1, MCE Course Application, the first time approval is sought to offer an MCE correspondence course. Once a course has been approved, no further approval is required for another approved provider to offer the same course. Prior to advertising or offering the course, however, the subsequent provider must complete MCE Form 3B-2, file the form together with the appropriate fee with the commission, and receive written or oral acknowledgement from the commission that all necessary documentation has been filed. The commission will publish guidelines to aid providers in the development of correspondence courses. Each correspondence course must contain the following: (1)-(8) (No change.) sec.535.72. Mandatory Continuing Education: Presentation of Courses, Advertising, and Records. (a) Providers are not required to file course schedules with the commission. (b) Providers are not required to notify the commission of changes to their course schedules. (c) The provider offering each MCE course shall file an MCE Course Completion Roster, MCE Form 8-2, and, for each student completing the course, an MCE Course Completion Card, MCE Form 7-0, with the commission within 10 days following completion of the course. Prior to the commencement of each course, each student seeking MCE credit for that course shall print his or her name and license number on MCE Form 8-2. The names of students not seeking MCE credit must not appear on MCE Form 8-2. If the provider was in attendance, the provider shall sign MCE Form 8-2. If the provider was not in attendance, an authorized representative of the provider who was in attendance and for whom an authorized signature exemplar is on file with the commission shall sign MCE Form 8-2. The commission may not accept signature stamps, unsigned forms, or forms signed by persons for whom an authorized signature exemplar has not been previously filed with the commission. Providers must make every reasonable effort to ensure that no student is certified for MCE credit who has not attended all class sessions. Providers may not use students for administration or monitoring duties during the course if the use prevents the student's participation in a significant portion of the course. (d) (No change.) (e) Providers of MCE correspondence courses shall furnish each student with an MCE Correspondence Course Reporting Form, MCE Form 9-2, at the time of the final examination. Upon completion of the examination the student shall sign MCE Form 9-2. To report successful course completion the provider shall file the completed MCE Form 9-2 with the commission. Providers may not report correspondence courses on MCE Forms 7-0, 8-2, or 11-3. (f) A provider shall, prior to commencement of a course, announce that the provider will not certify a student for MCE credit unless the student attends all sessions of the course, that partial credit will not be given for partial attendance, that no makeups or written work will be allowed for MCE credit, that the student must determine if the course is timely and appropriate for the student's MCE requirement, and that the student should retain the detachable portion of MCE Form 7-0 as documentation of attendance. In addition to the pre- course announcements, the provider is encouraged to require each student to sign an enrollment agreement containing the foregoing information prior to the start of the course. If the provider has not advertised or otherwise made students aware of the provider's refund policy, the enrollment agreement must also contain the refund policy. If the course is offered in one continuous session with no meal break and no more than four hours of MCE credit is awarded, the provider may verify attendance by use of a course completion card, MCE Form 7-0, signed by each student attending all of the course. If the course involves a meal break or is presented in more than one session, such as a course offered for three hours each day for five days, the provider shall verify attendance prior to the beginning of each session, using the original course completion roster, MCE Form 8-2, as the enrollment record. A provider shall retain attendance records for the period of time required by these sections for the retention of provider records. (g) (No change.) (h) Providers may not present MCE courses in the offices of a real estate brokerage firm or real estate franchise organization. All MCE courses must be publicized as open to enrollment by the general public. Providers may give preference in enrollment to persons who need MCE credit to obtain, renew, or activate a license and may enroll all others on a space available basis. (i) Advertising of MCE shall be subject to the following conditions. (1) A person may not advertise a specific MCE course or represent in advertising that the person is a provider until the person has received written approval from the commission for the providership and at least one course. A person may advertise an intention to offer MCE courses if no specific course is described and the advertisement clearly indicates the person has not been approved as a provider. (2) A provider may not advertise that a course has been approved or offer a course until the provider has received written approval of the course. If, however, the course has been previously approved for another provider, the course may be advertised once the commission has been notified of the provider's intention to offer the same course and the provider has received written or oral acknowledgment from the commission that all necessary documentation has been filed. (3)-(5) (No change.) (6) Any name a provider uses in advertising must not be deceptively similar to the name of any other approved MCE provider or school accredited by the commission or falsely imply a governmental relationship. (7) If a provider requires students to purchase course materials which are not included in the tuition, any such fees must appear in the advertisement of the course. (j) Providers shall retain student attendance records, including copies of completed MCE Form 8-2, for a period of three years following the completion of a course and shall make copies of the records available to former students. A provider may charge a reasonable fee to defray the cost of copying student records. A provider's records must be kept at the location designated in the MCE Provider Application. Providers must obtain prior approval from the commission to change the location at which the provider's records are kept. (k)-(l) (No change.) (m) Providers shall request permission to change business name, street or mailing address, ownership, person responsible for records or day-to-day operations, or persons authorized to sign MCE forms at least 15 days prior to the desired date of change. Providers shall report any change in refund policy, attorney-in-fact, address of attorney-in-fact, or business telephone number as the change occurs. All changes must be submitted on MCE Form lB-1, MCE Provider Application Supplement. (n)-(o) (No change.) (p) Providers may request MCE credit be given to instructors of MCE courses subject to the following guidelines. (1) The instructors may receive credit for portions of the course which they teach. (2) The instructors may receive full course credit by attending all of the remainder of the course. (3) MCE credit may be granted only once for each course. (4) The provider must report the instructor on MCE Form 11-3, and file that form with the commission along with other required forms for the course. The provider may not submit MCE Course Completion Card, MCE Form 7-0, for the instructor or obtain the signature of the instructor as a student on MCE Form 8- 2. (q)-(r) (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 March 17, 1993. TRD-9320495 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: April 8, 1993 Proposal publication date: February 2, 1993 For further information, please call: (512) 465-3900 Licenses 22 TAC sec.535.92 The Texas Real Estate Commission adopts an amendment to sec.535.92, concerning license renewals and satisfaction of mandatory continuing education (MCE) requirements, without changes to the proposed text as published in the February 2, 1993, issue of the Texas Register (17 TexReg 634). The amendment clarifies requirements for inactive real estate brokers, permits issuance of a license to a previously licensed person prior to the resolution of a pending complaint and makes nonsubstantive changes for clarity. The amendment also requires licensees to use forms approved by the commission when requesting MCE credit for courses satisfying another state's continuing education requirements or for courses approved by the State Bar of Texas. The amendment is necessary to provide guidelines for licensees and applicants. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties. 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 March 17, 1993. TRD-9320494 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: April 8, 1993 Proposal publication date: February 2, 1993 For further information, please call: (512) 465-3900 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VII. Texas Commission on Law Enforcement Officer Standards and Education Chapter 229. Texas Peace Officers' Memorial Advisory Committee Division 37 TAC sec.sec.229.1, 229.5, 229.10, 229.15, 229.20 The Texas Peace Officers' Memorial Advisory Committee to the Texas Commission on Law Enforcement Officer Standards and Education adopts new sec.229.1, concerning the definitions to be used in this chapter; sec.229.5, concerning general eligibility of deceased Texas Peace Officers; sec.229.10, concerning specific eligibility of deceased Texas Peace Officers; sec.229.15, concerning deaths not included; and sec.229.20, concerning determination standards, as Final Order Number 92-2 POM with changes to the proposed text as published in the December 25, 1992, issue of the Texas Register (17 TexReg 9093). These new sections as adopted will establish a set of criteria for selecting qualified deceased Texas Peace Officers to be included on the Texas Peace Officer Memorial. These new sections were adopted at the March 15, 1993, meeting of the Texas Peace Officers' Memorial Advisory Committee to the Texas Commission on Law Enforcement Officer Standards and Education. The changes to these new sections as adopted are as follows: the definition of line of duty under sec.229.1 is to identify actions which are both lawful and reasonable and which are performed either as a condition of employment or appointment; the deletion of the specific sections of the Texas Education Code under sec.229.5 so as to include peace officers wherever in the code their authority may be found; and the additional language found under sec.229.20 is to state clearly the intent of the committee which is to review each incident on a case-by-case basis and to be able to waive rules for good cause in making final determinations, particularly concerning historical, sparsely documented incidents. Responses to written and oral comments received regarding these new sections are as follows: Chief of Enforcement of the Texas Alcoholic Beverage Commission requested that the definition "killed in line of duty" be amended to expressly include vehicular accidents. The committee appreciates the comments, but the committee feels that sec.229.10 which is entitled Specific Eligibility of Deceased Texas Peace Officers, and contains the language "result of a personal injury," includes officers killed in vehicular accidents, without being too limiting. President of the Texas Association of School District Police requested that language be added to specifically list Texas Peace Officers authorized by the Texas Education Code, sec.21.483 rather than being listed as "other." The correspondence indicates an awareness that these Texas Peace Officers are included by the existing language. The committee has through its deliberations proposed a rule broad in scope to include all Texas Peace Officers wherever in the law their authority may be found, without a definitive listing or intent to be limiting. The word "other" in sec.229.5 refers to law and not to a specific classification or group of Texas Peace Officers. Vice President, Texas Association of School District Police and Treasurer, verbally commented that striking the specific references to the Education Code, sec.51.212 and sec.51.214 would accomplish the committee's objectives and the Association's concerns. These concerns are reflected in the modification of sec.229.5(4). Staff members of the commission also provided written and oral comments. They requested that the definition "line of duty" be clarified to eliminate the compensation requirement. Further, they requested that a provision be added to reflect the intent of the committee to conduct reviews on a case-by-case basis. These concerns are reflected in the modifications to the rule as adopted. The new sections are adopted under the Texas Government Code, Subchapter F, Chapter 415, sec.sec.415.111-415.123, which provides the Texas Peace Officers' Memorial Advisory Committee with the authority to pass rules for the administration of Subchapter F, Chapter 415, and Texas Civil Statutes, Article 6252-13a, when taken together establish the procedures for the rule making requirements for the Committee. sec.229.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Agency-A law enforcement unit or other entity, whether public or private, authorized by Texas peace officer or reserve peace officer. Certified copy -A true and correct copy of a document or record certified to by the custodian of the records of the submitting entity. Committee-The Texas Peace Officers' Memorial Advisory Committee, a governing body authorized under Chapter 415, subchapter F, Government Code, or its successor. Director-Director of the Texas Peace Officers' Memorial Advisory Committee or designee. Individual-A human being who has been born and is or was alive. Killed in the line of duty-A Texas peace officer who has died as a directly attributed result of a personal injury sustained in the line of duty. Law-Including, but not limited to, the constitution or a statute of this state, or the United States; a written opinion of a court of record; a municipal ordinance; an order of a county commissioners court; or a rule authorized by and lawfully adopted under a statute. Line of duty -Any lawful and reasonable action which a Texas peace officer is authorized by law, rule, regulation, or written condition of perform. Texas Peace Officer-An individual elected, Texas law, and an individual as a reserve peace officer who had been officially called to duty. Verification (verified) -The confirmation of the correctness, truth, or authenticity of a document, report, or information by sworn affidavit, oath, or deposition. sec.229.5. General Eligibility of Deceased Texas Peace Officers. (a) A deceased Texas peace officer, killed in the line of duty, is eligible for inclusion on the Texas peace officers' memorial if: (1) the Texas peace officer was among those listed under the Texas Code of Criminal Procedure, Article 2.12; (2) the Texas peace officer was among those licensed by the Texas Commission on Law Enforcement Officer Standards and Education, under the Government Code, Chapter 415; (3) the Texas peace officer was officially called to duty as a Texas reserve peace officer; (4) the Texas peace officer was among those listed under the Texas Education Code; (5) the Texas peace officer was among those named as such by other Texas law; or (6) the Texas peace officer who, in historical perspective, would be eligible under any of the preceding criteria. (b) If the supported finding is that the Texas peace officer died as a result of infectious disease contracted while lawfully performing official duties, or by exposure to hazardous materials or conditions while lawfully performing official duties, the Texas peace officer is eligible for inclusion. (c) The effective date of this section shall be April 30, 1993. sec.229.10. Specific Eligibility of Deceased Texas Peace Officers. (a) A deceased Texas peace officer is eligible for inclusion on the memorial if the fatal incident; (1) was a direct result of a line of duty, on duty incident; (2) was an indirect result but directly attributed to a line of duty, on duty incident; (3) was a direct result of a line of duty, off duty incident, except for reserve Texas peace officers; (4) was an indirect result of but directly attributed to a lawful line of duty, off duty incident, except for reserve Texas peace officers; (5) was a direct result of a felonious assault on the Texas peace officer, perpetrated because of the status as a Texas peace officer regardless of duty status. (b) The effective date of this section shall be April 30, 1993. sec.229.15. Deaths Not Included. (a) A Texas peace officer whose death is attributed to natural causes, is not eligible for inclusion, except when a medical condition arises out of a specific response to a violation of the law or an emergency situation causing a Texas peace officer's death, or causing the Texas peace officer's death during or after a period of hospitalization following the specific response to the violation of the law or emergency situation. (b) A Texas peace officer whose death is attributed to any of the following is not eligible for inclusion. (1) when caused as a result of or during the Texas peace officer's commission of a crime; (2) as a direct result of the Texas peace officer's voluntary alcohol or controlled substance abuse; or (3) when caused by the Texas peace officer's intention to bring about the Texas peace officer's own death. (c) The effective date of this section shall be April 30, 1993. sec.229.20. Determination Standards. (a) The committee, through its director, will receive documents and reports to establish a deceased Texas peace officer's eligibility for inclusion on the memorial. (b) The director of the memorial shall make every effort to confirm the authenticity of documents and information submitted to the committee and shall cause research to be conducted concerning the reported deaths of Texas peace officers. (c) Examples of documents, reports, and petitions which the committee and the director of the memorial should attempt to obtain include, but are not limited to: (1) certified copy of the Law Enforcement Agency incident report or other records; (2) certified copy of the Coroner's report; (3) sworn affidavit from the law enforcement agency chief executive officer describing and detailing the incident and death; (4) certified copy of statements of witnesses to the fatal incident; (5) an original letter or petition of a family member with verified supporting documents; (6) reproduced documents verified by a state or county historical commission chairperson; (7) news articles or other published materials supported by documents listed in this section; or (8) any other documentation which would reasonably substantiate a finding by the committee. (d) the committee shall review the recommendations of the director of the memorial concerning names of deceased Texas peace officers for inclusion on the memorial at a regularly scheduled meeting and make its final determination. The Committee may waive rules for good cause in making its final determination, and nothing in this chapter shall be interpreted as limiting the committee's authority to determine inclusion or exclusion based on the facts of the incident. (e) The effective date of this section shall be April 30, 1993. 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 March 18, 1993. TRD-9320512 Fred Toler Executive Director Texas Commission on Law Enforcement Officer Standards and Education Effective date: April 30, 1993 Proposal publication date: December 25, 1992 For further information, please call: (512) 450-0188 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part IX. Texas Department on Aging Chapter 255. State Delivery Systems Area Agency Designation 40 TAC sec.255.35 The Texas Department on Aging adopts new sec.255.35, concerning area agency on aging operations, with changes in the proposed text as published in the January 1, 1993 issue of the Texas Register (18 TexReg 38). The justification for the new chapter is that it incorporates materials contained in a previous rule pertaining to staffing of area agencies, includes recent changes to the Older Americans act as amended, and establishes new criteria for area agencies as a result of new directions established by the Older Americans Act and the Board of the Texas Department on Aging. The rule will function to improve the operation and visibility of area agencies on aging in leadership, advocacy, systems building, access to services, and accountability During the public comment period, comments were received from Harris County Area Agency on Aging, the YMCA of Harris County, Brazos Valley Area Agency on Aging, Houston-Galveston Area Agency on Aging, Concho Valley Area Agency on Aging, Administration on Aging Region VI, (DHHS) and the Operations Committee of the Texas Board on Aging. Comment: One commenter posed questions regarding the direction the Department was taking. As the Department moves toward newly targeted populations will service providers be asked to move away from those individuals currently served by our senior centers. Response: The Older Americans Act, sec.306(a), as amended, requires targeting of Title III services to those in greatest social and economic need, isolated, and older individuals with Alzheimer's or related disorders. The continuing reduction in human services funding, the increase of the elderly population, and the emphasis of the Older Americans Act to serve the frail and most in need influence the focus. Hopefully, resources will be available or located to allow senior center operations to continue. Comment: One commenter recommended that the words "with assistance from the Department" be incorporated into the training requirements established in subsection (c)(3) of this chapter. Response: The department agrees and has incorporated this into the rule. Comment: One commenter stated that the amount of training required exceeded the resources available to conduct the training and suggested it be scheduled over a period of three or four years. Response: The Department will review the training plans submitted by each area agency and make recommendations and provide technical assistance to assist area agencies in meeting training requirements of this rule. Comment: One commenter suggested that wording pertaining to written procedures for selection of state citizens advisory council members be removed from the bylaws requirements established for area agency advisory council bylaws. Response: The Department concurs and has placed this in a separate paragraph identified as subsection (c)(6)(D) and re-identified subsequent paragraphs accordingly. Comment: One commenter stated that the language pertaining to location of records in area agencies and service providers which had multi-site operations should be clarified. Response: The Department concurs and has amended the language in the paragraphs to provide additional clarity. Comment: One commenter stated that there was confusion between subsection (d)(1)(A) and (B) as to where provider records should be maintained. Response: The Department concurs and has amended the language in subsection (d)(1)(B) to provide additional clarification. Comment: One commenter stated that the requirement for grantee audits to be submitted to the Department within 180 days of the grantee organization's fiscal year-end would penalize that grantee. Response: The Department believes that this requirement is reasonable and attainable. It would not appear to be reasonable to alter the rule because one grantee may have some difficulty meeting the requirements. Therefore, no change was made to this section. Comment: One commenter stated the guideline for termination of an area agency's grant under subsection (d)(4)(A) was not consistent with other sections of the rule. Response: The Department concurs and has amended various parts under subsection (d)(4) to provide consistency. Comment: One commenter stated that the intent of subsection (d)(10)(A)(iv) was unclear. Response: The Department concurs and amended the paragraph to provide clarity to its meaning. Comment: One commenter stated that the wording in subsection (d)(10)(B)(ii) (III) would increase the number of budget submissions. Response: The Department concurs and deleted the paragraph entirely. subsection (d)(10)(B)(iii)(III) was also deleted for consistence. Comment: One commenter stated that 10 normal work days for a budget amendment under subsection (d)(10)(B)(iii) was unreasonable. Response: After much discussion the Department and the commenter agreed to changing the requirement to 15 days. Comment: One commenter stated that requiring reports be submitted timely 100% of the time is unrealistic. Response: The Department agreed to relax the criteria by adding a three day grace period for all reports. Comment: One commenter addressed the difficulty in meeting the time frame for publishing the area agency's phone listings, as prescribed in subsection (g), in all local phone books. Response: The Department concurs and amended subsection (g)(4) to allow additional time for compliance. For consistency, subsection (h)(2) was amended to also reflect the later time frame. Commenter: One commenter provided additional references from the Older Americans Act, Code of Federal Regulations 1321.53, and 45 Code of Federal Regulations Part 92 which could be added to the rule for the sake of clarity and accuracy. Response: The Department has added these references. In addition to the changes resulting from public comment, TDoA is adopting the rule with the following changes as a result of staff and board review and recommendations. The new section is adopted under the Human Resources Code, sec.101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the department. sec.255.35. Area Agency on Aging Operations. (a) Area Agency Program Responsibilities. The operations of the Area Agency on Aging encompasses these distinct responsibilities relative to meeting the requirements of the Older Americans Act. (1) Leadership. The area agency on aging shall be the leader relative to all aging issues on behalf of all older persons in the planning and service area. (2) Advocacy. The area agency shall serve as the visible public advocate for the development or enhancement of comprehensive and coordinated community-based system of services in each community through the planning and service area that focus on the needs of low-income minority individuals. (3) Systems development. The area agency will be responsible for systems building in its planning and service area (PSA). The system building includes five components that will result in the interconnection of the elements of planning, development, service delivery, service access and management. System building will further develop or enhance the existence of a comprehensive and coordinated continuum of services within the planning and service area. (4) Access to services. The area agency shall be the access point for older individuals with needs through its information and assistance and case management services. (b) Organization and staffing of the area agency. The area agency must be a single identifiable organizational unit either standing alone or with an umbrella agency and must have a qualified staff. (1) Organization. Area agencies will develop and maintain an organizational structure which will effectively administer Older Americans Act programs and responsibilities. (2) Director. Each area agency must have a full time director able to perform the functions as prescribed in 45 Code of Federal Regulations Part 1321.53 and the Older Americans Act of 1965, sec.306 as amended. Each individual selected to perform the duties of the full time director will be identified on the staffing pattern and in job descriptions as either director, area agency on aging, or as manager, area agency on aging, and will be budgeted at 100% of administration in the area plan budget. (3) Qualifications. The full time area agency director should be qualified by education and/or experience to administer, coordinate, and supervise all duties and functions of the area agency. (4) Staffing plan. The area agency must have on file for review a staffing plan that identifies the staff assigned to carry out area agency responsibilities and functions as detailed in sec.306, Title III of the Older Americans Act of 1965, as amended. (5) Organizational chart. The area agency shall have an organizational chart which identifies: (A) the area agency on aging as an agency which functions as a separate organizational unit to administer programs under the Older Americans Act, as amended; (B) the area agency on aging director; (C) all paid and volunteer staff; (D) each staff position assigned, including part-time; (E) lines of authority for all paid and volunteer staff; and (F) the percent of time of each position which is dedicated to aging program activities that is compensated through direct charges to the aging contract. (6) Job descriptions. Job descriptions for all positions specified on the organizational chart shall be developed and maintained. They will be signed by the incumbent and will include statements which define the scope, responsibilities, duties, and activities of the area agency director, full and part time staff, and volunteer staff. (7) Hiring preference. Area agencies will give preference in hiring to older individuals. Special consideration shall be given to individuals with formal training in the field of aging (including an educational specialty or emphasis in aging and a training degree or certificate in aging or equivalent professional experience in the field of aging, in accordance with the Older Americans Act, sec.307(a)(11) as amended. (c) Area agency activities. Area agencies will administer the provisions of the Older Americans Act as it relates to Title III programs in accordance with the approved area plan, and state and federal fiscal and programmatic rules, regulations and statutes. (1) System building. Area agencies will facilitate systems building activities for the development of a continuum of services from current service providers to long-term care services for the frail elderly. Area agencies will facilitate systems development in their planning and service area to provide opportunities and protection for older persons in their communities. To do this, area agencies will: (A) identify the needs of older persons on a continuing basis through the gathering and analysis of data. The outcomes of the needs assessment shall be utilized by the area agency in its area plan and should reveal the following: (i) the identification of those persons of greatest economic and social need; (ii) the identification of the needs of the frail elderly; (iii) the identification of services most needed in the rural areas; (iv) the establishment of priorities for funding decisions and service system development within the PSA; (v) the establishment of a plan to target services to those individuals of greatest economic and social need with preference to the low income minority target group as specified in the OAA; (vi) the identification of available resources which meet, or can be used to meet, the needs of older persons; (vii) measurable and attainable objectives and outcomes which are set out in the area plan and development of strategies or action plans which detail the activities to be used in implementing the area plan; and (viii) the establishment of procedures which provide for the utilization of information obtained from public hearings, the advisory council, local officials, older persons and the general public in the planning and service area of the area agencies on aging; (B) develop and publish methods for targeting services for those in social and economic need with preference to the low income minority as specified in the OAA as amended; (C) develop a comprehensive and coordinated system of services delivery; (D) determine the need for protective services, for the identification, prevention and treatment of abuse, neglect, and exploitation of older persons; (E) evaluate the effectiveness of the use of resources in meeting such needs; and (F) enter into contracts with service providers for the provision of services to meet the needs of the elderly as determined in the planning and service region. (2) Planning. The area agency on aging has the principal responsibilities for carrying out activities necessary for effective planning on behalf of older persons in their planning and service area (PSA). Planning responsibilities include: (A) needs assessment; (B) developing and updating the area plan to meet the needs of the older persons as determined by the area agency; (C) coordinating regional planning with all agencies, coalitions, and elderly persons to maximize all funding resources available to meet the needs of the elderly in the PSA; and (D) engaging in program development to fill gaps in services or expand existing service delivery, advocacy, and service access. (3) Training and Technical Assistance. The area agency, with assistance from the Department, shall provide for a training and technical assistance program necessary for the implementation of the area plan and programs, including in- service training to staff of the area agency, advisory council members, volunteers, grantees, and service providers under the area plan. (A) The area agency shall develop and implement a training plan for area agency and service provider staff development training each budget year based on information obtained from an assessment of training needs and requests made by the staff, grantees, and service providers under the area plan. The training plan shall include all required training indicated in TDoA standards. (B) The area agency shall assure the availability of area agency and contractor staff to attend training as required by the state agency. (4) Monitoring. Area agencies will conduct at least one on-site annual program monitoring of service providers. These monitoring visits may be announced or unannounced at the discretion of the area agency. Technical assistance will be furnished as needed. Area agencies on aging will monitor accomplishment of program outcomes and determine their effectiveness. Monitoring activities shall include: (A) analysis of the performance of all service providers to which the area agency has awarded a contract; (B) a monitoring procedure will be established by the area agency that includes written reports on findings to the service providers with a request for corrective action plan, follow up and appropriate correspondence to verify plan was accomplished and documentation of that accomplishment. (5) Advocacy. Area agencies shall provide leadership and be a visible advocate for older persons within the PSA. Activities on behalf of the elderly are: (A) involvement of older persons and other citizens in program planning ensuring community awareness of and involvement in addressing their needs; (B) reviewing and commenting on state plans and grant applications, budgets, and policies which affect older persons; (C) conduct public hearings to provide opportunities for older persons and those representing older persons to voice their needs and concerns; (D) coordinating area planning and development of activities related to the purposes of the Older Americans Act; (E) representing the interests of older persons before legislative, executive and regulatory bodies in their PSA; (F) providing technical assistance to agencies, organizations, associations or individuals representing older persons; (G) acting on behalf of older individuals by receiving and investigating complaints and resolving specific problems; and (H) organizing coalitions which influence other community agencies and organizations to make changes which will benefit older persons, especially the low income minority and those with the greatest social and economic need as targeted in the OAA. (6) Advisory councils. Area agencies will establish, utilize, and support an advisory council. (A) Responsibilities of the advisory council are: (i) advise on all matters relating to the development, administration and implementation of the area plan and its amendments; (ii) conduct public hearings on the area plan; (iii) review and comment on the area agency's budget prior to its submission to the TDoA; (iv) review and comment on community policies, programs and actions affecting older individuals, represent the interests of older persons, and encourage the involvement of older persons; (v) ensure, in collaboration with the area agency, that the advisory council membership is constituted as follows: (I) more than 50% of the members shall be 60 years of age or older, and include those of greatest economic and social need and clients of services funded by the area agency; (II) minority older individuals shall be represented at least in proportion to their number in the PSA; (III) each county within the PSA shall have at least one representative on the area agency advisory council; (IV) local elected officials will be members; (V) members of the general public will be members; (VI) providers of veterans health care (if appropriate); (VII) participants of Title III services will be members; (VIII) persons with disabilities and/or their caretakers and/or caregivers; and (IX) additional membership will be determined by the area agency. (B) Conflict of interest. Council members who are Title III subcontractors shall not vote on agenda items that would be considered conflict of interest. This action should be recorded in the minutes of the meeting to stand as an official record of the abstention. A conflict of interest would be indicated when an individual is: (i) employed by, cohabitates with, or is the spouse of an employee or council member, or participates in the management of a business entity, agency or other organization regulated by or receiving funds from Title III programs; (ii) uses or receives a substantial amount of tangible goods, services, or funds from programs authorized by the Older Americans Act of l965 as amended. (C) Bylaws. Area agencies shall develop and publish advisory council bylaws governing the following: (i) role and functions of the advisory council; (ii) number and characteristics of membership; (iii) procedures for membership selection and tenure; (iv) the procedures for the conduct of the advisory council's business and activities; and (v) establish scheduled meeting requirements. (D) State representation. Area agencies shall have written procedures for selection of representation to the State citizens advisory council. (E) Support of advisory council. The area agency shall support the council to facilitate its purpose and functions as follows: (i) orient and train new advisory council members; (ii) share agency information with council members; (iii) brief members about upcoming programs and problems affecting older persons; (iv) update members on state and federal legislative actions; (v) meeting preparations, including notification, agenda and minutes; and (vi) review and draft recommendations for action by the grantee board. (d) Area agency fiscal responsibilities. Area agencies on aging must demonstrate and maintain fiscal integrity in order to assure compliance with the requirements of the Older Americans Act of l965, as amended; Titled 45 CFR, Part 74; OMB Circular A-87 or A-122; OMB Circular A-128 or A-133; and all Texas Department on Aging Policies and Rules as published in the Texas Administrative Code (TAC); and, with all state and local laws as pertains to the operation of an Area Agency on Aging. In addition, the following financial standards will be followed to structure area agencies on aging. (1) Records maintenance. The area agency on aging's provisions for maintenance of records shall include the following. (A) Area agencies shall establish written procedures to adequately assure proper maintenance and retention of all financial records, supporting documents, statistical records, and all other records relating to its performance. All of the aforesaid records shall be kept at the Area Agency on Aging site, and shall be maintained for a period of five years following the end of Grantee's fiscal year or indefinitely if audit findings or other disputes or litigation have not been resolved. Multi-site Area Agencies on Aging shall maintain all records at a designated central location (administrative headquarters, etc.) for purposes of this section. (B) The area agency shall assure that all service providers adhere to the requirements for proper maintenance of records as specified in subsection (d) (1)(A) of this section relating to maintenance of records. Multi-site providers shall maintain all records at a designated central location (administrative headquarters, etc.) for purposes of this section. (2) Records accessibility. The area agency on aging's provisions for accessibility of records shall include the following. (A) The area agency on aging shall give the Texas Department on Aging, the Comptroller General of the United States, and the State of Texas, through any authorized representatives, the access to and right to examine all records, books, papers, contracts, or other documents related to this contract. Such right of access shall continue as long as such records, or any of them, are in existence. (B) The area agency shall assure that all service providers adhere to the requirements for proper accessibility of records as specified in subsection (d)(2)(A) of this section referring to records accessibility. (3) Audits. The area agency on aging shall provide an independent audit as follows. (A) The area agency on aging shall provide and furnish the Texas Department on Aging an annual audit by an independent certified public accounting firm within 180 days of the end of the Grantee's fiscal year. (B) The audit must cover the entire organization and be conducted in accordance with generally accepted auditing standards. Audits performed under this subsection are subject to review and resolution by the Texas Department on Aging. (C) The area agency on aging receiving more than $25,000 in federal funding from all sources must provide an audit in accordance with the standards for financial and compliance audits contained in the Standards for Audits of Governmental Organizations, Programs, Activities and Functions, issued by the United States General Accounting Office; the Single Audit Act of 1984; and the provisions of OMB Circular A-128, Audits of State and Local Governments, or OMB Circular A-133 Audits of Institutions of Higher Education, and Other Nonprofit Organizations, as applicable. (D) The area agency on aging understands and agrees that the Area Agency on Aging shall be liable to the Texas Department on Aging for any costs disallowed as a result of unresolved questioned costs revealed during the audit. (4) Payment suspension and grant termination. (A) In the event that monitoring/evaluation activities by the Texas Department on Aging disclose serious deficiencies in the operation of an Area Agency on Aging under provisions of all Texas Department on Aging policies and rules as published in the Texas Administrative Code (TAC) under subsection (e) of this section relating to area agency on aging accountability, the Texas Department on Aging may elect to suspend or terminate the area agency on aging's grant. (B) The area agency on aging, upon notification of such suspension or termination, shall have the right to appeal such suspension or termination following procedures outlined in 40 TAC sec.257.71 of this title (relating to Right to Appeal). (C) The area agency on aging's grant may be terminated upon the occurrence of any of the following events: (i) discontinuance of funding to the Texas Department on Aging from the Administration on Aging; or (ii) failure of the area agency on aging to comply with all Texas Department on Aging Policies and Rules as published in the Texas Administrative Code (TAC) under subsection (e) of this section relating to area agency on aging accountability; or (iii) mutual agreement between the area agency on Aging and the Texas Department on Aging. (D) If the area agency on aging's grant is terminated, the Texas Department on Aging may require the area agency on aging to transfer title and deliver to the Texas Department on Aging any property acquired by federal funds. (5) Recapture of payments. Recapture of payments may occur when an area agency on aging has failed to comply with all Texas Department on Aging Policies and Rules as published in the Texas Administrative Code (TAC) under Chapter 251 et seq (Title 40 Part IX, Texas Administrative Code), or if the Area Agency on Aging has received funds in excess of those actually earned. The Texas Department on Aging may take appropriate action including the recapture of payment and/or withholding of funds in such cases that overpayment has occurred. (6) Allowability. All purchases made with grant funds shall follow the criteria of allowability as prescribed in OMB Circular A-87 or A-122 and the following. (A) All purchases must have been made by actual receipt of the merchandise or issuance of a purchase contract, voucher, or other legal document that binds both parties to the transaction, no later than September 30 of the fiscal year for which funds have been budgeted and encumbered. (B) Actual receipt of the merchandise and payment must be made no later than the December 15 immediately following the fiscal year for which funds have been budgeted and encumbered. (C) Merchandise placed on order by a purchase order but not actually received by December 15 will have to be re-justified and paid for with current year funds. (7) Debarment or suspension requirements. Dealing with entities under debarment or suspension shall be prohibited as follows. (A) The area agency on aging shall not, using reasonably prudent judgement, deal with any person, business, or other entity which has been suspended or debarred from receiving federal funds under 45 Code of Federal Regulations 76, Government-wide Debarment and Suspension (non-procurement) and Government-wide Requirements for Drug-Free Workplace (Grants), subsection 200, or 48 Code of Federal Regulations 9, Contractor Qualifications, subsection 4. (B) The area agency on aging shall assure that all service providers adhere to the requirements regarding debarment and suspension as specified in subsection (d)(7)(A) of this section, relating to use of prudent judgment and dealing with suspended entities or persons. (8) Disallowance of costs. Disallowance of costs shall occur as follows. (A) The allowable use of federal, state, and matching credit funds, in accordance with OMB Circulars A-87, A- 122, and other applicable laws, regulations, and circulars promulgated by recognized authoritative bodies, may be reviewed by independent audit and/or subgrantee monitoring by the Texas Department on Aging, as required by OMB Circular A-128. (B) Costs found to be unallowable, as defined in subsection (d)(8)(A) of this section relating to disallowed costs, shall be designated as questioned costs. (C) Questioned costs shall represent costs that have been determined to be unallowable after the close of a grant year and, in the case of monitoring, submission of the final financial status report, Form 269. Disallowance is established when an area agency on aging receives notification of a proposed action, in accordance with sec.257.12 of this title (relating to Notice of Proposed Action), resulting from questioned costs which remain unresolved at the time of such notification. (D) In accordance with 40 TAC sec.257.11 of this title (relating to Hearings For Area Agencies), an area agency on aging shall have the right to a hearing concerning the issuance of, or basis for the disallowance, and shall exercise such right by following the procedures in sec.257.13 of this title (relating to Request for Hearing). (E) Any area agency on aging having funds recaptured in accordance with subsection (d)(5) of this section, relating to recapture of funds, because of a disallowance shall waive all rights to such funds and shall not receive any of the funds upon reallocation. (F) Disallowance resulting from questioned costs revealed during independent audit shall be issued within 30 days following the failure to resolve all such questioned costs within the six months allowed for resolution in accordance with OMB Circular A-128, sec.14. (G) Disallowance resulting from questioned costs established during monitoring by the Department shall be issued within 30 days following the failure to resolve all such questioned costs within the timeframe established in the monitoring report. (9) Federal cash management requirements. 45 Code of Federal Regulations 92, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, and 31 Code of Federal Regulations 205, Withdrawal of Cash from the Treasury for Advances Under Federal Grant and Other Programs, respectively, requires that all Area Agencies on Aging comply with the following. (A) Under 45 Code of Federal Regulations 92.21(b), methods and procedures for payment shall minimize the time elapsing between the transfer of funds and disbursement by the grantee or subgrantee, in accordance with Treasury regulations at 31 Code of Federal Regulations Part 205. (B) Under 31 Code of Federal Regulations 205.4(a), cash advances to a recipient organization shall be limited to the minimum amounts needed and shall be timed to be in accord only with the actual, immediate cash requirements of the recipient organization in carrying out the purpose of the approved program or project. The timing and amount of cash advances shall be as close as is administratively feasible to the actual disbursements by the recipient organization for direct program costs and the proportionate share of allowable indirect costs. (C) In order for area agencies on aging to comply with the minimization of funds, two procedures must be instituted within the fiscal departments. (i) Advance funds must be requested from the Texas Department on Aging in a manner consistent with each agency's payment schedule and one which will minimize the time between receipt and disbursement. Agencies making only monthly payments may continue to request money monthly. Agencies making payments more often should request money twice each month. Requests should be timed to disbursement needs. (ii) The form, "Federal Funds Daily Cash Balance," must be maintained beginning January 1, l993. This form must be completed on a daily basis or as payments using federal funds are made. (D) Any area agency on aging that cannot or does not choose to adhere to the requirements in paragraph (9) (A) and (B) of this section, relating to cash management requirements, may request reimbursement of funds per 45 Code of Federal Regulations 92, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, subsection 21(d). (10) Budget and budget amendments. All budget and budget amendment submissions shall be required to meet the following requirements. (A) For all original budget submissions. (i) All area agencies on aging shall be required to submit an original budget as part of their area plan prior to the beginning of each federal fiscal year. The budget must quantify the persons and units to be served, the expenses to provide services, and the resources available to fully fund such expenses to assure compliance with the goals and objectives detailed in the area plan narrative in order to produce the desired outcomes of the AAA and fulfillment of the AAA's mission, as stated in the Area Plan. (ii) The original budget submission must be received by the due date as prescribed by the Texas Department on Aging (TDoA). The Department may request each AAA to set its own due date within a prescribed parameter. If the date of receipt is established by the AAA, it becomes the official required submission date. (iii) The original budget must use the planning figures provided by the Department in allocating all funds provided by the Department. (iv) In the event that an area agency provides services through case management and utilizes the direct purchase of services pool for the resources, these performance and financial standards must be submitted in a TDoA prescribed format. (v) The area agency must complete all supporting documentation, as prescribed by the Department, for submission with the budget. (B) For all budget amendment submissions. (i) An amended budget shall be due when there is a change of scope in the operations of the area agency change of scope is a situation or event which could alter or affect an area agency's ability to comply with its approved area plan. The following are considered changes in scope. (I) If funding increases or decreases by 10% or more of federal Title III funds on a cumulative basis into or out of a fund category for services provided under "Part B," "Part C-1," or "Part C-2." This provision shall not apply to the administrative budget. In addition, this provision shall not apply to AAA budgets placing all service funds, except those budgeted as direct service, into a direct purchase of services pool under the case management service. (II) A service which was identified and approved in the area plan becomes unavailable within the planning and service area of the area agency. (III) A contracted service is proposed to be established and funded by the area agency which was not identified and approved in the area plan. This provision shall not apply to vendor services established, in the case of area agency that budget service funds into a direct purchase of services pool under the case management service. (IV) The area agency requests a waiver to provide a service directly which was not identified and approved in the area plan. (V) If expenditures increase by 10% or more of the allocation of federal Title III funds into a fund category for services provided under "Part B," "Part C-1," or "Part C-2," when an area agency places all service funds, except those budgeted as direct service, into a direct purchase of services pool under the case management service. Other changes may occur which the area agency may feel will qualify as a change of scope. These issues will be addressed on an individual basis. If warranted, the situation may become specifically identified as a change of scope for the benefit of all area agencies. (ii) An amended budget must be submitted and approved, regardless of the amount of funds transferred, prior to: (I) contracting for a previously unbudgeted and unapproved service; or (II) the area agency conducting a service directly, when waiver is required, which was not identified and approved in the area plan and budget; or (III) the expenditure of unbudgeted funds resulting from an increase in the approved administrative budget, regardless of the amount. (iii) An amended budget must be submitted for approval within 15 normal work days of: (I) discontinuance of a service which was identified and approved in the area plan and budget; or (II) changes in funding that increases or decreases a funding category by more than the cumulative 10% allowable of federal Title III funds, except in the case of area agencies that budget all service funds into a direct purchase of services pool under the case management service; or (III) when expenditures increase in a funding category by 10% or more of the allocation of federal Title III funds in the case of an area agency that budgets all service funds into a direct purchase of services pool under the case management. (iv) A final budget amendment will be required of all area agencies unless: (I) no funds have been transferred between funding categories since the last approved budget or amendment; and (II) no services have been added or deleted since the last approved budget or amendment; and (III) the AAA provided no additional direct services since the last approved budget or amendment. (v) The final budget amendment must be received by August 15 of each fiscal year or as otherwise prescribed by the Department. (e) Area agency accountability. Area agencies on aging shall be accountable to meet all programmatic and financial performance targets as outlined in its area plan and the requirements established by its contract with the Department. (1) Performance Measures. Area agencies on aging will meet the following performance measures. (A) All reports, budgets, budget amendments, and other required submissions to the Department shall be accurate and have sufficient documentation to verify such accuracy upon review by the Department during any on-site review. (B) An area agency must ensure, through appropriate contractor monitoring, that service standards established by the Department are met and that the well- being of older individuals within its service area is maintained. The area agency shall be able, through appropriate documentation, to demonstrate the successful accomplishment of all established service standards. (C) On an annual basis, the area agency on aging achieves 90% of planned service units, unduplicated persons, and total expenditures for the area agency on aging's four largest (defined by dollar amount) budgeted programs. (D) The area agency on aging will maintain a timely reporting rate, on an annual basis, of 100% for Forms 300, 269, Ombudsman, other required reporting obligations as prescribed by the Department and area plan objectives and outcomes. A three day grace period for timeliness shall be allowed for purposes of this paragraph. (E) Area agencies on aging must file on time their area plan and any required amendments, all monitoring responses, Budget and Budget Amendments, unless written extension, not to exceed 10 working days, has been granted in accordance with subsection (e)(1)(F) of this section referring to requests for extensions. (F) All extensions must be requested in writing prior to the due date. All requests must provide justification for the need of extension and no more than four extensions shall be approved during any fiscal year. (G) The area agency on aging shall meet, unless written waiver is obtained; all requirements for adequate proportion with regard to access, in-home services, and legal services; and, maintenance of effort with regard to legal services and Ombudsman activities. (2) Performance reports. On a timely basis, not to be less than quarterly, the Department may present to the Board of the Department a performance report for all area agencies on aging detailing the adherence to, or lack thereof, of the financial and reporting requirements outlined in subsection (d) of this chapter relating to the AAA fiscal operations standards. Such information may be the basis for Department actions such as: (A) qualifying for carryover funding; (B) inclusion in the carryover reallocation pool; (C) institution of administrative sanctions; or (D) implementing procedures leading to withdrawal of AAA designation. (3) Compliance with performance standards. Performing up to the standards outlined in subsection (d) of this section referring to area agency fiscal responsibilities will provide positive incentive for AAAs in such ways as: (A) ability to qualify for carryover funds following the procedures as prescribed in sec.251.7 of this title (relating to Carryover Policy); and (B) ability to participate in the reallocation of carryover funds deobligated from ineligible area agencies on aging. (4) Failure to meet performance standards. Failure to meet the required standards as outlined in this title may result in the following actions being taken by the Department. (A) First notification of standards deficiencies to the Area Agency on Aging by the Department of any such deficiency shall be sent with the following information provided: (i) a complete explanation of the standards which have not been met; and (ii) complete and detailed corrective actions required to be completed by the Area Agency in order to meet the standards; and (iii) a timeframe within which the corrective actions must be completed. (B) If corrective actions are not complete and acceptable within the timeframe established under paragraph (4)(A)(iii) of this subsection relating to establishment of a timeframe for corrective actions, second notification of standards deficiencies to the Area Agency on Aging by the TDoA shall be sent by certified mail with the following information provided: (i) a complete explanation of the standards which have not been met; and (ii) complete and detailed corrective actions, which may include additional reporting, required to be completed by the Area Agency in order to meet the standards; and (iii) an explanation for the unacceptability of any corrective actions which may have been taken by the Area Agency on Aging; and (iv) a timeframe within which the corrective actions must be completed; and (v) notification that the area agency on aging has been placed in a probationary status and that all administrative funds shall be withheld by the Department until such time as the area agency on aging resolves all deficiencies outlined in the notification of standards deficiencies and is removed from probationary status; and (vi) notice that failure to resolve all deficiencies may result in the TDoA seeking withdrawal of designation as an area agency on aging following the procedures outlined in sec.255.34 of this title (relating to Withdrawal of Area Agency Designation and Continuity of Services); and (vii) notice that the area agency on aging may appeal the actions being taken by the Department by following the procedures established in sec.257.11 of this title (relating to Appeal Procedures). (f) Uniform logo for area agencies on aging. Each area agency on aging will use the logo designed by the Department to assure a uniform, statewide symbol for area agencies on aging designation for public information purposes. The following logo will be used. [graphic] (1) The logo will be used for at least the following: (A) public service announcements; (B) pamphlets; (C) brochures; (D) signs; (E) newsletters; (F) business cards; (G) stationery; (H) displays; (I) reports; (J) other means of public communication media whenever possible. (2) Failure to physically demonstrate adherence to this policy will be considered non-compliance with this rule. (3) Use of the Department's logo is required for all area agencies on aging designated under Title III of the Older Americans Act, as amended, no later than December, 1993. (g) Uniform telephone listings. The telephone number of each area agency on aging, the area agency on aging's information and assistance toll-free or collect number, and the area agency on aging's nursing home ombudsman toll-free or collect number will appear in each telephone directory that is published by the provider of local telephone service, for residents in any geographical area that lies in whole or in part in the planning and service area served by the area agency on aging. (1) The listings will appear in the unclassified sections and government sections under the listing "SENIOR CITIZENS SERVICES," "AGING," "SOCIAL SERVICES," or other appropriate sections of the phone book if these listings are not available. (2) The listings will appear in the classified section of the telephone directories of the major metropolitan area of the area agency on aging, and to the extent possible, in other areas of the area agency on aging's service area. (3) The listing in the unclassified section and classified section is to begin with the words: Area Agency on Aging to position it at or near the top of each heading. The listing will appear in boldface type, as follows: Area Agency on Aging of (name of area) Business Office area code and telephone number; Information and Assistance toll-free or collect number; Nursing Home Ombudsman toll-free or collect number. (4) These listings are to be completed by: (A) no later than December 31, 1994; or (B) the next printing cycle of the telephone directory of each provider of local telephone service following the completion of the HHSC restructuring, whichever comes first. (5) These listings will be used in all other service directories, public service announcements, pamphlets, brochures, reports, newsletters, stationery, and other means of public communication media whenever possible. (6) Failure to physically demonstrate adherence to this policy will be considered non-compliance with this rule. (h) Listing of the Texas Department on Aging as primary funding source by Area Agencies on Aging. All area agencies on aging designated under Title III of the Older Americans Act, as amended, will cite the Texas Department on Aging as its primary funding source. (1) The phrase "Funded by the Texas Department on Aging" will appear in all news releases, public service announcements, pamphlets, displays, signs, brochures, reports, stationery, and other means of public communication media. (2) Use of this phrase in all public communication media is effective upon adoption of this rule. Existing stocks of information items may be expended, and once expended, reorders will fall under this requirement. Existing non- expendable items such as signs and displays will be required to adhere to this requirement no later than December, 1994, or the completion of the HSSC restructuring, whichever comes first. (3) Failure to physically demonstrate adherence to this policy will be considered non-compliance with this rule. 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 March 19, 1993. TRD-9320568 Mary Sapp Executive Director Texas Department on Aging Effective date: October 1, 1993 Proposal publication date: January 1, 1993 For further information, please call: (512) 444-2727