Emergency Sections An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing, for no more than 120 days. The emergency action is renewable once for no more than 60 days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 7. BANKING AND SECURITIES Part I. State Finance Commission Chapter 3. Banking Section Subchapter B. General 7 TAC sec.3.38 The Finance Commission of Texas (the Commission) adopts on an emergency basis new sec.3.38, concerning application of a state banking association to convert to a state limited banking association. The section adopted on an emergency basis is contemporaneously proposed for public comment in this issue of the Texas Register. This section is adopted on an emergency basis because the Commission finds that a requirement of state law, namely, the mandate of Article XVI, sec.16(c), of the Texas Constitution, requires adoption of this rule on fewer than 30 days' notice, to ensure that state banks have the same right and opportunity as national banks to convert to state limited banking associations pursuant to Texas Civil Statutes, Article 342-310, on September 1, 1993. Article 342-310, as amended and renumbered by House Bill Number 1212, 73rd Legislature, 1993, is effective September 1, 1993. Statutory citations in this preamble and in the body of new sec.3.38 are to the statutes as amended by the 73rd Legislature, 1993. The new section is adopted under Texas Civil Statutes, Article 342-113(4), which provide the Commission with the authority to promulgate general rules and regulations to permit state banks to transact their affairs in any manner which they could do were they organized and operating as national banks. sec.3.38. Conversion of a State Banking Association to a Limited State Banking Association. (a) A state banking association that desires to become a state limited banking association may do so, in addition to any other method authorized by law, by conversion pursuant to Texas Civil Statutes, Article 342-310, in the same manner as it could do if it was organized and operating as a national bank under the laws of the United States, subject to the provisions of subsection (b) of this section. (b) A state banking association that wishes to convert to a state limited banking association pursuant to Texas Civil Statutes, Article 342-310, must obtain the approval of its board of directors and its shareholders as if such conversion was a merger pursuant to Part V of the Texas Business Corporation Act, including the obligation to pay dissenters' rights in the manner contemplated therein. Issued in Austin, Texas, on August 30, 1993. TRD-9328005 Everette D. Jobe General Counsel Texas Department of Banking Effective date: August 31, 1993 Expiration date: December 30, 1993 For further information, please call: (512) 475-1300 Part II. Banking Department of Texas Chapter 25. Prepaid Funeral Contracts 7 TAC sec.25.23 The Texas Department of Banking (the "Department") adopts on an emergency basis new sec.25.23, establishing fees applicable to the regulated, prepaid funeral services and merchandise industry, sometimes referred to as the prepaid funeral benefits industry, pursuant to Texas Civil Statutes, Article 548b, as amended effective September 1, 1993 (the "Act"). A proposed version of sec.25.23 was published at 18 TexReg 4723, and comments have been received as well as a hearing requested. Based on written comments received, the emergency section has been revised from the proposed version. A public hearing is being held on the proposed section on September 2, 1993, and any final, adopted rule will take into account all written and oral submissions. The Department adopts sec.25.23 on an emergency basis to define terms, set application fees, and establish examination fees to be assessed against and collected from each prepaid funeral benefits licensee based on the number of each licensee's total outstanding unmatured contracts, for the purpose of recovering the cost of examination and the equitable or proportionate cost of maintenance and operation of the Department and the enforcement of the Act. The new section is adopted on an emergency basis to ensure that all necessary rules are in place to fund regulation of the industry and implement the provisions of House Bill Number 2499, 73rd Legislature, 1993, effective September 1, 1993. The Department finds that a requirement of state law requires adoption of this section on fewer than 30 days' notice because sec.2 and s8 of the Act require that the prepaid funeral benefits industry bear its equitable or proportionate share of the cost of maintenance and operation of the Department and pay the cost of enforcement of the Act. Failure to have an appropriate section in place during the interim period between the effective date of amendments to the Act and final adoption of the section would cripple the ability of the Department to fund regulation of this industry. The new section is adopted under Texas Civil Statutes, Article 548b, sec.sec.1(A)(d), 2, 3, 5(a)(4)(D)(ix), and 8, as effective September 1, 1993, pursuant to House Bill 2499, 73rd Legislature, 1993, which empowers the Department to set fees. sec.25.23. Fees. (a) The following words and terms, when used in this section, have the following meanings unless the context clearly indicates otherwise. (1) "Act" means Texas Revised Civil Statutes, Article 548b, as amended. (2) "Commissioner" means the Banking Commissioner of Texas. (3) "Department" means Texas Department of Banking. (4) "Examination" means the process of evaluating the financial condition of a permit holder's prepaid funeral benefit operation, either by a field examination or an internal Department review of financial statements and reports in lieu of a field examination. (5) "Fiscal year" means the 12-month period from September 1st to August 31st of the next succeeding calendar year. (6) "Excess Earnings" means funds in trust accounts, including all realized and unrealized gains and losses, that exceed 110% of all sums paid by purchasers on contracts. (7) "Permit holder" means a person having a valid permit to sell prepaid funeral benefits. (8) "Prepaid funeral benefits" means prearranged or prepaid funeral or cemetery services or funeral merchandise, including caskets, grave vaults, and all other articles of merchandise incidental to a funeral service. The term does not include a grave lot, grave space, grave marker, monument, tombstone, crypt, niche, or mausoleum unless it is sold in contemplation of trade or barter for services and merchandise to which the Act applies. (9) "Seller" means a person selling, accepting funds or premiums for, or soliciting contracts for prepaid funeral benefits or contracts or policies of insurance to fund prepaid funeral benefits in this state. (b) Application Fees. The application fees set forth in this subsection are either specifically set out in the Act or have been set in accordance with the Act to reasonably approximate the agency's cost of processing new applications, applications for withdrawal of funds, or applications for renewal of permits, including any associated review, investigation, and examination, except for extraordinary expenses for out of state investigation of new applicants. Except as otherwise provided in this subsection, all fees are due at the time the application is filed and are nonrefundable. Failure to timely pay fees or costs shall be grounds for denial of the application. (1) New Permit Application Fee. An applicant for a new prepaid funeral benefits permit shall pay a nonrefundable $500 fee. In addition to the application fee, an applicant shall pay any extraordinary costs incurred by the Department pursuant to any out of state investigation of the applicant as required by sec.3 of the Act. Extraordinary costs shall be paid by the applicant within 20 days after written request by the Department. (2) Conversion Application Fee. An applicant for the conversion of a trust- funded prepaid funeral benefits operation to an insurance-funded prepaid funeral benefits operation shall pay a $1,000 fee per application. (3) Application Fee for Withdrawal of Excess Earnings. Pursuant to sec.5 of the Act, an applicant for the withdrawal of excess earnings shall pay a fee of $1,000 per permit or a fee not to exceed $5,000 for consolidated applications of more than five permits. (4) Renewal Application Fee. To renew a permit, the permit holder shall pay a $500 fee. At the Department's election, the renewal fee shall be due and payable with and in addition to the first installment on the examination fee under subsection (c)(1) of this section on or before the date of permit expiration. (c) Examination Fees. The Department shall assess and collect nonrefundable examination fees in accordance with this subsection. Any assessed fee or an installment payment as part of a fee is due at the time of billing. (1) Annual Examination Fee. The Department shall annually assess each seller an examination fee, not to exceed $7,500 in a fiscal year, at a rate of not more than $1.75 per unmatured contract of the permit holder. The number of unmatured contracts of the permit holder shall be the number of unmatured contracts reported by the permit holder in the most recent annual report on file with the Department, subject to adjustment for errors or mistakes in such annual report. The Department may levy this fee in quarterly or fewer installments in such periodically adjusted amounts as reasonably appear necessary to defray the costs of examination and the equitable or proportionate cost of maintenance and operation of the Department and the enforcement of the Act, and to avoid the accumulation of unnecessary fund balances. (2) Excess Examination Fee. In addition to and separate from any other fees under this subsection, a seller shall pay the excess cost of conducting more than one field examination during the same fiscal year as may be deemed necessary by the Department, at a rate of $500 per examiner per day. (3) Minimum Examination Fee. If the examination fee as computed under paragraph (1) of this subsection is less than $25, a minimum examination fee of $25 shall be levied and collected. Issued in Austin, Texas, on August 30, 1993. TRD-9328015 Everette D. Jobe General Counsel Texas Department of Banking Effective date: August 31, 1993 Expiration date: December 30, 1993 For further information, please call: (512) 475-1300 Chapter 26. Perpetual Care Cemeteries 7 TAC sec.26.1 The Texas Department of Banking ("the Department") adopts on an emergency basis new sec.26.1, establishing fees applicable to regulated perpetual care cemetery corporations pursuant to the Health and Safety Code, Chapter 712, as amended effective September 1, 1993 (the "Act"). A proposed version of sec.26.1 was published at 18 TexReg 4724, and comments have been received as well as a hearing requested. Based on written comments received, the emergency section has been revised from the proposed version. A public hearing is being held on the proposed section on September 2, 1993, and any final, adopted rule will take into account all written and oral submissions. The Department adopts new sec.26.1 on an emergency basis to define terms, set filing fees for corporations giving notice of intent to the Department to operate perpetual care cemeteries, set filing fees for filing the annual statement of funds by regulated corporations, and establish examination fees pursuant to the Act, assessed against and collected from each examined corporation based on the reasonable and necessary costs to defray the costs of administering the Act. The section is adopted on an emergency basis to ensure that all necessary rules are in place to fund regulation of the industry and implement the provisions of House Bill Number 1213, 73rd Legislature, 1993, effective September 1, 1993. The Department finds that a requirement of state law requires adoption of this section on fewer than 30 days' notice because the Act as amended requires that the perpetual care cemetery industry bear its equitable or proportionate share of the cost of maintenance and operation of the Department to defray the cost of administering the Act. Failure to have an appropriate section in place during the interim period between the effective date of amendments to the Act and final adoption of the section would cripple the ability of the Department to fund regulation of this industry. The new section is adopted under the Health and Safety Code, sec.sec.712.0031, 712.042, and 712.044, effective September 1, 1993, pursuant to House Bill Number 1213, 73rd Legislature, 1993, which empowers the Department to set fees. sec.26.1. Fees and Assessments. (a) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise. (1) "Act" means the Health and Safety Code, Chapter 712, as amended. (2) "Commissioner" means the Banking Commissioner of Texas. (3) "Corporation" means a corporation subject to the Act that is organized under the Act, Chapter 712, or any corresponding statute in effect before September 1, 1993, to operate one or more perpetual care cemeteries in Texas. (4) "Department" means the Texas Department of Banking. (5) "Examination" means the process of evaluating the financial condition of a perpetual care cemetery corporation, either by field examination or internal Department review of financial statements and reports in lieu of or in addition to field examination. (6) "Fiscal year" means the 12-month period from September 1st to August 31st of the next succeeding calendar year. (b) Filing Fees. The filing fees set forth in this subsection are either specifically set out in the Act or have been set in accordance with the Act to reasonably approximate the agency's cost of administering the Act with respect to each particular filing. (1) Notice Fee. Pursuant to the Act, sec.712.0031, each Corporation required to file notice of intent to operate a perpetual care cemetery with the Department shall submit with such notice a nonrefundable fee of $500. (2) Annual Statement of Funds Fee. A Corporation shall pay an annual nonrefundable $500 fee to file the annual statement of funds required under the Act. (3) Time of payment. Except as otherwise provided in this section, all fees are nonrefundable and due at the time the related documentary filing is made. Failure to timely pay fees or costs under this section shall be grounds for enforcement action by the Department under the Act. (c) Examination Fees. The Department shall assess and collect nonrefundable examination fees in accordance with this subsection. Any assessed fee or an installment payment as part of a fee is due at the time of billing. (1) Annual Examination Fee. The Department shall annually assess each Corporation an examination fee, not to exceed $5,000 in a fiscal year, at a rate of not more than $0.0012 per dollar of the book value of the total perpetual care cemetery trust assets of the regulated corporation. The Department may levy this fee in quarterly or fewer installments in such periodically adjusted amounts as reasonably appear necessary to defray the costs of examination. The examination fee or an installment thereof is due at the time of billing. (2) Minimum Examination Fee. If the examination fee as computed under paragraph (1) of this subsection is less than $25, a minimum examination fee of $25 shall be levied and collected. Issued in Austin, Texas, on August 30, 1993. TRD-9328014 Everette D. Jobe General Counsel Texas Department of Banking Effective date: August 31, 1993 Expiration date: December 30, 1993 For further information, please call: (512) 475-1300 TITLE 16. ECONOMIC REGULATIONS Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter CC. Tow Trucks 16 TAC sec.sec.5.802, 5.803, 5.805, 5.806 The Railroad Commission of Texas repeals on an emergency basis sec.sec.5.802, 5.803, 5.805, and 5.806 and adopts on an emergency basis new sec.sec.5.802, 5.803, 5.805, and 5.806, concerning the regulation and operation of tow trucks. The existing language in sec.sec.5.802, 5.803, 5.805, and 5.806 was administratively transferred from Texas Department of Licensing and Regulation rules as specified in the August 10, 1993, issue of the Texas Register (18 TexReg 5326). This repeal of existing rules and adoption of new rules will allow existing and new tow truck operators to promptly register with the commission tow trucks that are not registered with the commission as of September 1, 1993, and to comply with insurance requirements for those tow trucks. Proposed rules applicable to all tow trucks, including those registered with the commission as of September 1, 1993, will be separately published for public comment. Without these emergency rules, the commission anticipates that manual registration would be necessary for an estimated 1,500-2,000 tow trucks within a 30-45 day period, resulting in an estimated delay of one week to one month in issuing the certificates of registration. Such delay could cause a tow truck operator to be unable to legally respond to requests for towing in emergency situations. The commission presently registers more than 700,000 vehicles annually using an automated procedure and is not equipped to manually register numerous tow trucks in a short period of time. In addition, if certificates of registration for tow truck operators are delayed due to manual processing, the commission may not be able to rapidly verify that the tow truck operators have the insurance required for their operations. Therefore, the commission finds an imminent peril to the public safety and welfare if the current rules are not repealed and new rules are not adopted on an emergency basis. The repeals are adopted on an emergency basis as a result of Senate Bill 452 and Senate Bill 958, 73rd Legislature, 1993, which transferred jurisdiction of the regulation and operation of tow trucks from the Texas Department of Licensing and Regulation to the Railroad Commission of Texas. sec.5.802. Definitions. sec.5.803. Registration Requirements. sec.5.805. Insurance Requirements. sec.5.806. Fees. Issued in Austin, Texas, on August 30, 1993. TRD-9328111 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: September 1, 1993 Expiration date: December 31, 1993 For further information, please call: (512) 463-7094 The new sections are adopted on an emergency basis under Senate Bill 452, sec.11, 73rd Legislature, 1993, which orders the Railroad Commission of Texas to adopt rules, in the interest of public safety, that provide requirements for registration and maintenance of registration, including minimum insurance requirements for the operation of tow trucks and minimum safety standards regarding the operation of tow trucks. sec.5.802. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Act-Texas Civil Statutes, Article 6687-9b. Original application -The required application form to obtain certificates of registration. Certificate of registration-The document issued by the commission authorizing the operation of a specific tow truck. Commercial motor vehicle or commercial carrier -Have the same meanings as ascribed to them in sec.5.501 of this title (relating to Definitions). Commission-The Railroad Commission of Texas. Consent tow-Any tow conducted with the permission of, or at the direction of, the towed vehicle's legal or registered owner, or such owner's authorized representative. Except as set forth in the definition of "nonconsent tow" in this section, a tow will be considered a consent tow where the owner is able to give consent. Director-The director of the Transportation/Gas Utilities Division of the commission, or a designee of the director. Mechanical device -A mechanical, electrical or hydraulic winch or wheel lift permanently attached to or used in combination with a commercial motor vehicle. Mini-wrecker or auto trailer-A vehicle without motive power used in combination with a commercial motor vehicle, and which is adapted or used to tow, winch or otherwise move another motor vehicle. Motor Carrier Act-Texas Civil Statutes, Article 911b. Motor Carrier Safety Act-Texas Civil Statutes, Article 6701d. Motor vehicle-A vehicle subject to registration under the Certificate of Title Act (Texas Civil Statutes, Article 6687-1), or any other self-propelled device permitted to travel on a public highway. Non-tow truck or tow device-A commercial motor vehicle used in combination with a mini-wrecker, auto trailer or other towing device, and which is not equipped with a mechanical device. Nonconsent tow -Any tow conducted without permission of, or not at the direction of, the towed vehicle's legal or register owner, or such owner's authorized representative. Regardless of this definition, certified law enforcement officials may control the scene of an accident in the manner they deem appropriate and order a nonconsent tow. Operate-Driving or causing to be driven a tow truck on a public highway. Operator-Any person operating, or causing to be operated, a tow truck on a public highway of this state. Owner-A person owning, leasing or otherwise using, either directly or indirectly, a tow truck on a public highway of this state. Person-An individual or other legal entity. Registration year -The period between January 1st and December 31st of each year. Renewal application -The required application form to renew certificates of registration. Tow truck-A commercial motor vehicle equipped with, or used in combination with a mechanical device, mini-wrecker, or auto trailer, and which is adapted or used to tow, winch or otherwise move a motor vehicle. Vehicle-As defined in Texas Civil Statutes, Article 6675a-1. sec.5.803. Registration Requirements. (a) Every current certificate of registration issued by the Texas Department of Licensing and Regulation before September 1, 1993, shall be valid until midnight December 31, 1993, unless otherwise cancelled or suspended by the commission. This provision shall expire on January 1, 1994. (b) Every tow truck shall have its own certificate of registration. A certificate of registration is not assignable or transferable, except as follows in this section. (c) Every certificate of registration expires at midnight on December 31st of each year. (d) A certificate of registration authorizes a tow truck to be operated in the state of Texas, provided the operator of the tow truck complies with all other applicable state laws. This act and its rules do not in any way reduce, diminish or otherwise affect the jurisdiction of the commission to enforce the Motor Carrier Act. (e) The original certificate of registration shall be kept in the tow truck at all times and presented immediately upon request to any certified law enforcement official or commission representative. (f) A person desiring to operate a tow truck not registered with the commission as of September 1, 1993, shall file a completed application and the appropriate fee with the commission on a form prescribed by the director. The original application must be signed by the owner or the owner's authorized representative. (g) All applications shall include an affidavit, signed by the owner or the owner's authorized representative, stating that all tow trucks sought to be registered are in compliance with the safety requirements of this subchapter and all other applicable state laws. (h) If the applicant is a corporation, the individual who signs the original application form, by signing the application, certifies that the corporation is in good standing with the State Comptroller of Public Accounts, and that all taxes or other assessments owed the state are paid. (i) On or before October 15th of each year, the commission shall issue a renewal application to each owner which has, in the preceding registration year, received a certificate of registration for a tow truck. The renewal application shall be on a form prescribed by the director for that purpose. A person desiring to engage in the operation of a tow truck during any period of the next registration year shall complete and submit a renewal application before December 1st of each year. A renewal application shall be accompanied by the required renewal fee for each tow truck sought to be registered, and shall be signed by the owner or owner's authorized representative. (j) No renewal certificates of registration shall be issued for any tow trucks for which a renewal application is submitted when the renewal application bears a postmark after January 1st of the previous registration year. An owner must submit a new application to obtain a certificate of registration after that date. (k) A certificate of registration may be transferred during a current registration year from a tow truck which has been retired from service to one that has been placed in substitution of the retired tow truck. Substitution may be made by the owner when the retired tow truck's certificate of registration is returned to the commission and its request for substitution is submitted on a completed form prescribed by the director for that purpose, accompanied by the required fee. (l) Before a new tow truck is put into service during a current registration year, the owner shall apply to the commission for a certificate of registration on the form prescribed by the director for that purpose and pay the required fees. (m) Every certificated owner shall be assigned a unique number. That number shall remain the owner's number until such time as the owner fails to renew its certificates of registration or until such time as its certificates of registration are cancelled by the commission. An owner shall refer to its unique number in all correspondence with the commission. sec.5.805. Insurance Requirements. (a) Every owner of a tow truck not registered with the commission as of September 1, 1993, shall file and maintain evidence of currently effective bodily injury and property damage automobile liability insurance in the following minimum amounts: (1) for a tow truck, together with the towed vehicle, having a gross vehicular weight, registered weight, or actual weight of 26,000 pounds or under, $300, 000 combined single limit for bodily injuries to or death of all persons injured or killed in any accident, and loss or damage in any one accident to the property of others; or (2) for a tow truck, together with the towed vehicle, having a gross vehicle weight, registered weight, or actual weight exceeding 26,000 pounds, $500,000 combined single limit for bodily injuries to or death of all persons injured or killed in any accident, and loss or damage in any one accident to the property of others. (b) Except as follows, every owner of a tow truck not registered with the commission as of September 1, 1993, shall maintain and have on file with the commission evidence of cargo or on-hook insurance coverage. The intent of this subsection is to require insurance covering damage to a towed vehicle during which time the owner is the bailee of the vehicle being towed. The term "damage" shall include, but is not limited to damage to the towed vehicle that is a direct or indirect result of an improper hookup or improper towing. The minimum insurance coverage required under this subsection shall be: (1) $10,000 for the loss of or damage to the vehicle towed by any one tow truck which, together with the towed vehicle, has a gross vehicular weight, registered weight, or actual weight of 26,000 pounds or less; or (2) $25,000 for the loss of or damage to the vehicle towed by any one tow truck which, together with the towed vehicle, has a gross vehicular weight, registered weight, or actual weight exceeding 26,000 pounds. (c) In lieu of cargo or on-hook insurance, an owner may secure gargagekeepers legal liability insurance with direct primary coverage in an amount not less than that prescribed in subsection (b) of this section. (d) An owner who is exclusively engaged in the towing of property owned by it may, in its original application and in every renewal application, certify that all tow trucks operated by it are used exclusively to transport its own property. An owner or operator so certifying will be exempt from the requirements of subsections (b)-(c) of this section. (e) No owner shall operate a tow truck over the public highways of this state without the insurance coverage required by this section filed with the commission. (f) Evidence of insurance required in this section shall be filed on a form prescribed by the director and shall be duly completed and executed by an authorized representative of an insurance company holding a certificate of authority to transact business in the State of Texas, or by a surplus lines insurer that meets the requirements of the Insurance Code, Article 1.14-2, and rules adopted by the Texas Department of Insurance under that article. (g) Notwithstanding the provisions of subsection (a) of this section, an owner may be authorized to self-insure for bodily injury and property damage liability in lieu of filing proof of insurance. The authorization for an owner to self-insure may be granted upon the same showing required of a motor carrier under the terms of sec.5.182 of this title (relating to Qualifications as Self- Insurer). (h) If insurance coverage lapses, the owner shall immediately cease all operations of tow trucks owned by it. The director shall notify the owner of any such lapse, and that all certificates of registration held by it shall be subject to cancellation. (i) The owner who files, or causes to be filed, evidence of bodily injury or property damage insurance shall pay the appropriate fee. sec.5.806. Fees. The following are nonrefundable fees charged in connection with this Act. (1) For each tow truck sought to be registered with an original application postmarked before January 1, 1994, the fee shall be $50. (2) The fee for adding newly acquired tow trucks during a current year shall be $60, prorated according to paragraph (4) of this section; except, during the first registration year the original application is filed the fee shall be $120 prorated as set out in paragraph (4) of this section. (3) The fee for substituting a certificate of registration from one tow truck to another or for replacing a lost or stolen certificate of registration shall be $10. (4) An owner making an original application for certificates of registration or for requesting the addition of newly acquired tow trucks during a current registration year shall pay a prorated fee based on the number of months left in the registration year. (5) The filing fee for the submission of evidence of bodily injury and property damage insurance shall be $25. This fee is a one-time fee unless another filing is required because of a change in insurance companies. Issued in Austin, Texas, on August 30, 1993. TRD-9328114 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: September 1, 1993 Expiration date: December 31, 1993 For further information, please call: (512) 463-7094 TITLE 22. EXAMINING BOARDS Part XV. Texas State Board of Pharmacy Chapter 281. General Provisions 22 TAC sec.281.48 The Texas State Board of Pharmacy adopts on an emergency basis an amendment to sec.281.48 concerning Informal Disposition of a Contested Case. The amendment is adopted on an emergency basis to ensure that all necessary requirements are in place to implement provisions of new sec.17D of the Texas Pharmacy Act, which becomes effective September 1, 1993. The amendment adopted on an emergency basis is being simultaneously proposed for public comment in this issue of the Texas Register. The amendment is adopted on an emergency basis under the Texas Pharmacy Act (Article 4542a-1, Texas Civil Statutes), sec.16(a), which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act; the Texas Pharmacy Act, sec.17B(c), which becomes effective September 1, 1993, and requires that the board adopt a form for complaints; and the Texas Pharmacy Act, sec.17D, which becomes effective September 1, 1993, and requires that the Board adopt rules governing informal disposition of contested cases. sec.281.48. Informal Disposition of a Contested Case. (a) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, default, or dismissal. (b) Prior to the imposition of disciplinary sanction(s) against a license, the licensee shall be offered an opportunity to attend an informal conference and show compliance with all requirements of law, in accordance with the Administrative Procedure and Texas Register Act, sec.18(c) (Texas Civil Statutes, Article 6252-13a). (c) Informal conferences shall be attended by the executive director/secretary or his designated representative, legal counsel of the agency or an attorney employed by the office of the attorney general, and other representative(s) of the agency as the executive director/secretary and legal counsel may deem necessary for proper conduct of the conference. The licensee and/or the licensee's authorized representative(s) may attend the informal conference and shall be provided an opportunity to be heard.

(d) In any case where charges are based upon information provided by a person ("complainant") who filed a complaint with the board, the complainant may attend the informal conference, unless the proceedings are confidential under the Texas Pharmacy Act, sec.27A, or other applicable law. A complainant who chooses to attend an informal conference shall be provided an opportunity to be heard with regard to charges based upon the information provided by the complainant. Nothing herein requires a complainant to attend an informal conference. (e) Informal conferences shall not be deemed meetings of the board and no formal record of the proceedings at such conferences shall be made or maintained. (f)

    [(b)] Any proposed consent order shall be presented to the board for its review. At the conclusion of its review, the board shall approve or disapprove the proposed consent order. Should the board approve the proposed consent order, the appropriate notation shall be made in minutes of the board and the proposed consent order shall be entered as an official action of the board. Should the board disapprove the proposed consent order, the case shall be scheduled for public hearing. Issued in Austin, Texas, on August 31, 1993. TRD-9328097 Fred S. Brinkley, Jr. Ececutive Director/Secretary Texas State Board of Pharmacy Effective date: September 1, 1993 Expiration date: December 31, 1993 For further information, please call: (512) 832-0661 22 TAC sec.281.73. The Texas State Board of Pharmacy adopts on an emergency basis new rule sec.281.73 concerning Complaints. The section describes the procedures for filing complaints made to the Board. The section adopted on an emergency basis is simultaneously proposed for public comment in this issue of the Texas Register. The section is adopted on an emergency basis to ensure compliance with provisions described in Senate Bill 621 passed by the 73rd Legislature which added new Section 17B to the Texas Pharmacy Act and becomes effective September 1, 1993. The provisions of this Act become effective September 1, 1993. Section 17B(c) of the new Act provides that "the board by rule shall adopt a form for the filing of complaints made to the board." The new rule is adopted on an emergency basis under the Texas Pharmacy Act (Article 4542a-1, Texas Civil Statutes) Section 16(a), which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act and Texas Pharmacy Act Section 17B(c) , which becomes effective September 1, 1993, and requires that the board adopt a form for complaints. sec.281.73. Complaints. Complaints may be filed with the agency orally by phone or in person at the agency's office, or in any written form, including submission of a completed complaint form. A complaint form shall be maintained at the agency's office for use at the request of any complainant. The complaint form shall request information necessary for the proper processing of the complaint by the agency, including, but not limited to: (1) Complainant's name, address, and phone number; (2) Name, address and phone number of subject of complaint, if known; (3) Date of incident; 4) Name and description of drug(s) involved, if any; and (5) Complete description of incident giving rise to complaint. Issued in Austin, Texas, on August 31, 1993. TRD-9328095 Fred S. Brinkley, Jr. Executive Secretary/Secretary Texas State Board of Pharmacy Effective date: September 1, 1993 Expiration date: December 31, 1993 For further information, please call: (512) 832-0661 Chapter 283. Licensing Requirements for Pharmacists 22 TAC sec.283.9 and sec.283.10 The Texas State Board of Pharmacy adopts on emergency basis amendments to sec.283.9 and sec.283.10 concerning Fee Requirements for Licensure by Examination and Reciprocity and Requirements for Application for a Pharmacist License Which Has Expired. The amendments adopted on an emergency basis are simultaneously proposed for public comment in this issue of the Texas Register. The sections are adopted on an emergency basis to ensure compliance with provisions of the Texas Pharmacy Act as amended by Senate Bill 621 passed by the 73rd Legislature. Senate Bill 621 amends the Texas Pharmacy Act, sec.24, to specify that a pharmacist license that has been expired for one year or more cannot be renewed and the person must apply for a new license. This provision becomes effective September 1, 1993. The amendments are adopted under the Texas Pharmacy Act, s16(a) which gives the Board the Authority to adopt rules for the proper administration of the Act; and sec.24(g) which specifies that the Board may not renew a license that has been expired one year or more. sec.283.9. Fee Requirements for Licensure by Examination and Reciprocity. (a)-(d) (No change.) (e) Once an applicant has successfully completed all requirements of licensure, the applicant will be notified of licensure as a pharmacist and of his or her pharmacist license number and the following is applicable: (1) The notice letter shall serve as authorization for the person to practice pharmacy in Texas for a period of 30 days from the date of the notice letter. (2) The applicant shall complete a pharmacist license application and pay one pharmacist licensee fee as specified in sec.295.5
      [sec.291.5] of this title (relating to Pharmacist License or Renewal Fees). (3) The provisions of sec.295.7 of this title (relating to Pharmacist License Renewal) apply to the timely receipt of an application and licensure fee. (4) If application and payment of the pharmacist license fee are not received by the board within 30 days from the date of the notice letter, the person's license to practice pharmacy shall expire. A person may not practice pharmacy with an expired license. The license may be renewed according to the following schedule. (A) If the notice letter has been expired for [(not more than)] 90 days or less
        , the person may become licensed by making application and paying to the board one license fee and a fee that is one-half of the examination fee for the license. (B) If the notice letter has been expired for more than 90 days but less than one year,
          [(2 years,) ] the person may become licensed by making application and paying to the board all unpaid renewal fees and a fee that is equal to the examination fee for the license. (C) If the notice letter has been expired for one year
            [two years] or more, the person shall apply for a new license. sec.283.10. Requirements for Application for a Pharmacist license Which Has Expired. (a) Expired less than 90 days. If a person's license has been expired for 90 days or less, the person may renew the license by: (1) paying to the board the required renewal fee and a fee that is one-half of the examination fee for a license; and (2) [after September 1, 1991, reporting] Reporting completion of the required number of contact hours of approved continuing education. (b) Expired more than 90 days. If a person's license has been expired for more than 90 days but less than one year,
              [2 years,] the person may renew the license by: (1) paying to the board all unpaid renewal fees and a fee that is equal to the examination fee for a license; and (2) [after September 1, 1991, reporting] Reporting completion of the required number of contact hours of approved continuing education. (c) Expired for one year
                or more. If a person's license to practice pharmacy in Texas has been expired for one year or more, the person may not renew the license and shall apply for a new license. (d) (No change.) (e) Alternatives to re-examination. In lieu of re-examination as specified in subsection (d) of this section, the board may issue a license to a person whose license has been expired for one year or more, if the person meets the requirements of subsection (f) or (g) of this section and has not had a license granted by any other state suspended, revoked, canceled, surrendered, or otherwise restricted for any reason. (f) Persons practicing pharmacy in another state. The board may issue a license to a person who was licensed as a pharmacist in Texas, moved to another state, is licensed in the other state, and has been engaged in the practice of pharmacy in the other state for the two years preceding the application if the person meets the following requirements: (1) (No change.) (2) submits to the board certification that the applicant: (A)-(B) (No change.) (C) [after September 1, 1991, has] Has completed a minimum of 24 contact hours of approved continuing education during the preceding two license years. (3)-(4) (No change.) (g) Persons not practicing pharmacy. The board may issue a license to a person who was licensed as a pharmacist in this state, but has not practiced pharmacy for the two years preceding application for licensure under the following conditions: (1) the person's Texas pharmacist license has been expired for less than 10 years, the person shall: (A) make application for licensure to the board on a form prescribed by the board; (B) pass the Texas Pharmacy Jurisprudence Examination with a grade of 75 (the passing grade may be used for the purpose of licensure for a period of two years from the date of passing the examination); (C) pay the examination fee set out in sec.283.9 of this title (relating to Fee Requirements for Licensure by Examination and Reciprocity); and (D) complete approved continuing education and/or board-approved internship requirements according to the following schedule: (i) if the Texas pharmacist license has been expired for more than one year but less than two years the applicant shall complete 12 contact hours of approved continuing education; three years the applicant shall complete 24 contact hours of approved continuing education;

                (ii)

                  [(i)] if the Texas pharmacist license has been expired for more than two years but less than three years the applicant shall complete 24 contact hours of approved continuing education; (iii)
                    [(i)] if the Texas pharmacist license has been expired for more than three years but less than four years the applicant shall complete 36 contact hours of approved continuing education; (iv)
                      [(iii)] if the Texas pharmacist license has been expired for more than four years but less than five years the applicant shall complete 36 contact hours of approved continuing education and 500 hours of internship in a board- approved internship program; (v)
                        [(iv)] if the Texas pharmacist license has been expired for more than five years but less than six years the applicant shall complete 36 contact hours of approved continuing education and 700 hours of internship in a board-approved internship program; (vi)
                          [(v)] if the Texas pharmacist license has been expired for more than six years but less than seven years the applicant shall complete 36 contact hours of approved continuing education and 900 hours of internship in a board- approved internship program; (vii)
                            [(vi)] if the Texas pharmacist license has been expired for more than seven years but less than eight years the applicant shall complete 36 contact hours of approved continuing education and 1,100 hours of internship in a board-approved internship program; (viii)
                              [(vii)] if the Texas pharmacist license has been expired for more than eight years but less than nine years the applicant shall complete 36 contact hours of approved continuing education and 1,300 hours of internship in a board-approved internship program; and (ix)
                                [(viii)] if the Texas pharmacist license has been expired for more than nine years but less than ten years the applicant shall complete 36 contact hours of approved continuing education and 1,500 hours of internship in a board-approved internship program. (2) Any hours of approved continuing education earned within two years prior to the applicant successfully passing the Texas Pharmacy Jurisprudence examination may be applied towards the continuing education requirement. (3) Any hours worked as a licensed pharmacist in another state during the two years prior to the applicant successfully passing the Texas Pharmacy Jurisprudence Examination may be applied towards the internship requirement. (4) All requirements for licensure shall be completed within 2 years from the date the applicant successfully passes the Texas Pharmacy Jurisprudence examination. (5) If the person's Texas pharmacist license has been expired for 10 years or more, the applicant shall apply for licensure by examination as specified in sec.283.7 of this title (relating to Examination Requirements). Issued in Austin, Texas, on August 31, 1993. TRD-9328093 Fred S. Brinkley, Jr. Executive Director/Secretary Texas State Board of Pharmacy Effective date: September 1, 1993 Expiration date: December 31, 1993 For further information, please call: (512) 832-0661