ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part V. General Services Commission Chapter 113. Central Purchasing Division Purchasing 1 TAC sec.sec.113.2, 113.4, 113.11, 113.12 The General Services Commission adopts amendments to sec. sec.113.2, 113.4, 113.11, and 113.12, relating to central purchasing, without changes to the proposed text as published in the November 22, 1994, issue of the Texas Register (19 TexReg 9257). The amendments are needed to implement the Centralized Master Bidders List as required by Chapter 684, Acts, Regular Session (1993). The amendments streamline the bid list application and maintenance process by deleting the requirement to purchase a commodity code book and making the application valid for a two-year period. Definitions are updated to identify the centralized master bidders list. Section 113.11(c)(4), relating to Delegated Purchasing, is amended to delete references to agency bidders lists and correct the delegated purchasing limit so that it matches that which is detailed in sec.113.(e)(1). Section 113.12(f), relating to Research in Higher Education, is revised to require use of the centralized master bidders list for purchases in excess of $15,000. The Texas Employment Commission expressed concern that the requirement for bidders to pay the $100 biannual fee to remain on the centralized list will cause some Historically Underutilized Businesses not to register for the list and that this would make such vendors unavailable for state contracts. The Texas Department of Human Services stated that, if required to contact all vendors on the centralized list, its costs for postage, staff time, and reproduction will increase. The department further stated that implementation of the proposed rule would impact its regions' relationships with local vendors, the department further stated that its costs would increase if it were required to pay shipping charges for purchases from nonlocal vendors. No comments were made in favor of the amendments. The Texas Employment Commission and Texas Department of Human Services commented against the adoption of the amendments. The agency disagrees with the comments for the following reasons. The biannual fee of $100 to remain on the centralized list should not be a significant obstacle to any viable business. The proposed fee is less than the current annual fee. Historically Underutilized Businesses who choose not to be on the centralized list will be listed as "Certified Only". These businesses will not be listed for class-item information; however, agencies will be able to access them by Vendor Identification Number, Vendor Name, Certificate Number, or County. These businesses can continue to be listed in the commission's electronic and hardcopy directories of Historically Underutilized Businesses at no charge. Agencies are required by statute to solicit bids from all vendors that serve the agency's geographic region when a purchase is expected to cost more than $15,000. Agencies will provide their bid lists to the commission for inclusion on the centralized list, thereby eliminating the cost to the agency of maintaining its own list and the burden on businesses needing to contact multiple agencies. The centralized list will also allow bidders to be selected on the basis of locality for purchases under $15,000. Since bids must be awarded to the lowest and best compliant bidder under statute and rule, an agency's purchasing costs would not be increased by use of the centralized list. The amendments are adopted under Texas Civil Statutes, Article 601b, which provide the General Service Commission with the authority to promulgate rules necessary to accomplish the purposes of the Article and Chapter. 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 November 15, 1994. TRD-9501033 Judith Monaco Porras General Counsel General Services Commission Effective date: February 15, 1995 Proposal publication date: November 22, 1994 For further information, please call: (512) 463-3960 Part X. Department of Information Resources Chapter 201. Planning and Management of Information Resources Technologies 1 TAC sec.sec.201.1-201.5, 201.9, 201.13 The Department of Information Resources adopts amendments to sec.sec.201. 1- 201.5, 201.9, and 201.13, concerning the planning and management of information resources technologies, without changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10157). The amendments are necessary to ensure the administrative procedures for the planning and management of information resources comply with provisions enacted by the 73rd Legislature, Regular Session. The amended sections include policies relating to agency information resources managers, agency planning, board policies, and information resources standards and policies. The adopted standards and policies define circumstances for state agency use of the Texas Agency Network (TEX-AN) for intercity telecommunications and standards for data transport networks for computers. No comments were received regarding adoption of the amendments. The amendments are adopted under the authority of Government Code, Chapter 2054, sec.2054.052, which authorizes the Department to adopt rules as necessary to carry out its responsibility under the Information Resources Management 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 January 27, 1995. TRD-9501145 Edward Serna Deputy Director Department of Information Resources Effective date: February 17, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 475-4714 1 TAC sec.201.7 The Department of Information Resources adopts the repeal of sec.201.7, concerning agency annual performance reports for information resources technologies, without changes to the proposed text as published in the December 16, 1994, issue of the Texas Register (19 TexReg 9949). The rule is being repealed to ensure the administrative procedures for the planning and management of information resources comply with provisions enacted by the 73rd Legislature, Regular Session. The repealed section describes the submittal procedures and contents for the agency annual performance reports. No comments were received regarding adoption of the repeal. The repeal is adopted under the authority of Government Code, Chapter 2054, sec.2054.052, which authorizes the Department to adopt rules as necessary to carry out its responsibility under the Information Resources Management 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 January 27, 1995. TRD-9501143 Edward Serna Deputy Director Department of Information Resources Effective date: February 17, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 475-4714 1 TAC sec.201.15 The Department of Information Resources adopts new sec.201.15, concerning charges for copies of public records, without changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7867). The section is adopted to comply with the provisions of Chapter 428, Acts, 73rd Legislature, Regular Session (1993), which requires agencies to adopt rules establishing charges for copies of public records. Except as otherwise provided in the proposed rules, the Department adopts the charges, definitions, and procedures set out in the General Services Commission Rules at 1 TAC sec.sec.111.62-111.70. The section defines and details the charges for copies of public records maintained by the Department. The Department received one comment from the City of Richardson noting the General Services Commission's recommended charge for audio and video cassettes is less than the price typically paid by the city for those items. The Department acknowledges this concern, but has determined the charges, as proposed, will provide an adequate level of recovery. The new section is adopted under the authority of Government Code, Chapter 2054, sec.2054.052, which authorizes the Department to adopt rules as necessary to carry out its responsibility under the Information Resources Management 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 January 27, 1995. TRD-9501144 Edward Serna Deputy Director Department of Information Resources Effective date: February 17, 1995 Proposal publication date: October 4, 1994 For further information, please call: (512) 475-4714 Part XII. Advisory Commission on State Emergency Communications Plans-Standards 1 TAC sec.251.4 The Advisory Commission on State Emergency Communications adopts new sec.251.4, concerning Guidelines for the Provisioning of Accessibility Equipment, without changes to the proposed text as published in the September 6, 1994, issue of the Texas Register (19 TexReg 6965). The rule is justified because it provides for the provisioning of equipment and services that improve effectiveness and reliability of 9-1-1 call delivery systems in 9-1-1 regions throughout the state. No comments were received regarding adoption of the new section. The new section is adopted under the Health and Safety Code, Chapter 771, sec.sec.771.055, 771.056, 771.057, and 771.072; and the Texas Administrative Code, Part XII, Chapter 251, Regional Plan Standards, which provides the Advisory Commission on State Emergency Communications with the authority to develop and amend a regional plan in order to provide equipment/services considered to be essential for 9-1-1 call delivery and which meets standards set by the commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 30, 1995. TRD-9501188 Mary A. Boyd Executive Director Advisory Commission on State Emergency Communications Effective date: February 20, 1995 Proposal publication date: September 6, 1994 For further information, please call: (512) 305-6911 TITLE 16. ECONOMIC REGULATION Part IX. Texas Lottery Commission Chapter 401. Administration of the State Lottery Act Subchapter C. Practice and Procedure 16 TAC sec.sec.401.201, 401.203, 401.204, 401.209, 401.211, 401. 214, 401.219, 401.220, 401.223, 401.226, 401.227, 401.228 The Texas Lottery Commission adopts amendments to sec. sec.401.201, 401.203, 401.204, 401.209, 401.211, 401.214, 401.219, 401.220, 401.223, 401.226, 401. 227, and new sec.401.228. Section 401.227 is adopted with changes to the proposed text as published in the August 23, 1994, issue of the Texas Register (16 TexReg 6635). This change is to correct an improper citation, from House Bill 1586 to House Bill 1587. The remaining sections are adopted without changes and will not be republished. The amendments and new section will provide clear guidance to persons as to the practice and procedure relating to contested cases before the Texas Lottery Commission. The amendments and new section will provide fair methods for hearing and resolving an applicant or licensee's disagreement with certain official actions of the Texas Lottery Commission, Executive Director, or Lottery Director, as applicable. No written comments were received regarding adoption of the amendments and new section. Oral comments were received at the Commission meeting at the time of adoption which questioned the propriety of allowing a party to be represented by an authorized person who is not an attorney. The Commission did not make changes to the rules based on the comments because it believes a person should have the ability to choose his/her representative, regardless of whether such representative is not an attorney. The amendments and new section are adopted under sec.467.102 of the Texas Government Code which provides the Texas Lottery Commission with authority to adopt rules for the enforcement and administration of the laws under the Texas Lottery Commission's jurisdiction and pursuant to the Administrative Procedures Act, Texas Government Code, sec.2001.004. sec.401.227. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Administrative law to conduct hearings on matters within the agency's jurisdiction and to prepare proposed decisions to properly resolve such matters. Agency-The administrative entity created by House Bill 1587, 73rd Legislature, Regular Session. Applicant-A party seeking a lottery, bingo manufacturer, bingo distributor, bingo commercial lessor, or bingo conductor's license. Authorized representative -An individual who represents a party in a contested case or in a preliminary hearing, and may be any individual other than the party. Hearings attorney -An attorney assigned to represent an agency division in a contested case or a preliminary hearing. License-The whole or any part of a license, permit, certificate, approval, registration, or similar form of permission, the issuance, renewal, amendment, suspension, or revocation of which is within the jurisdiction of the agency. Licensee-A person who has been issued a license by the agency. Licensing-The agency process respecting the granting, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license. Lottery division -The division within the agency responsible for the operation of the lottery. Party-Any person who has filed a request for hearing, or a division of the agency's office. Person-Any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character. It may also include an estate, trust, receiver, assignee for benefit of creditors, trustee, trustee in bankruptcy, assignee, or any other group or combination acting as a unit. Pleading-Any document filed by a party concerning the position or assertions in a contested case or preliminary hearing. Request for hearing-A request by an applicant or licensee for official action by the agency regarding the denial, revocation, or suspension of its license under the lottery or bingo laws of this state. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 27, 1995. TRD-9501121 Kimberly L. Kiplin General Counsel Texas Lottery Commission Effective date: February 17, 1995 Proposal publication date: August 23, 1994 For further information, please call: (512) 323-3791 Chapter 402. Bingo Regulation and Tax 16 TAC sec.402.542 The Texas Lottery Commission adopts an amendment to sec.402.542, concerning Investigation of Applicants for Licenses, without changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6886). The amendment will provide assurances to the public that bingo is operated under the highest degree of fairness and integrity by allowing the Texas Lottery Commission to investigate the background of each applicant, including a criminal history inquiry. The amendment will allow criminal history information to be maintained by the agency. Such information may result in denial, revocation, or suspension of a license under the Bingo Enabling Act. No written comments were received regarding adoption of the amendment. Oral comment was received at the Commission meeting when the amendment was considered for adoption that raised issues about whether the Bingo Division must maintain criminal history information as opposed to the Security Division. The Commission believes the Security Division may appropriately maintain the information and the Bingo Division does not need to maintain such information. The amendment is adopted under Texas Civil Statutes, Article 179d, sec.16(a) and (d), and Texas Government Code, sec.467.102, which provides the Texas Lottery Commission with authority to adopt rules for the enforcement and administration of the Bingo Enabling Act and pursuant to the Administrative Procedures Act, Texas Government Code, sec.2001.004. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 27, 1995. TRD-9501123 Kimberly L. Kiplin General Counsel Texas Lottery Commission Effective date: February 17, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 323-3791 16 TAC sec.402.543 The Texas Lottery Commission adopts an amendment to sec.402.543, with changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6886). The changes were made to subsection (a) of the section to clarify that the Bingo Operations Division Director does not have the authority to deny an application except for statutory or regulatory grounds. The amendment will provide clear guidance to persons as to the practice and procedure relating to contested cases before the Texas Lottery Commission. The amendment will clarify that the Bingo Operations Director issues notices of license application denials based on statutory or regulatory grounds, that all hearings will be conducted in accordance with the agency's Practice and Procedure rules, and that each party will pay for its own transcript of a contested case hearing at the Commission meeting when the amendment was considered for adoption. No comments were received regarding adoption of the amendment. Oral comment was received which raised an issue regarding the delegation of authority to the Bingo Operations Division Director relating to the denial of applications. The commenter wanted the amendment to be clear that the Bingo Operations Division Director did not have the authority to deny an application except for statutory or regulatory grounds. The agency agreed with the comment and revised the language in the rule to reflect subcomment. No comments were received by a group or association. The amendment is adopted under Texas Government Code, sec.467.102, which provides the Texas Lottery Commission with authority to adopt rules for the enforcement and administration of the laws under the jurisdiction of the Texas Lottery Commission and pursuant to the Administrative Procedure Act, Texas Government, sec.2001.004. sec.402.543. Denials; Suspensions; Revocations; Hearings. (a) Denial of application. If the director of the Bingo Operations Division determines that an applicant is not eligible for a license on statutory or regulatory grounds, or that the license should be denied on statutory or regulatory grounds which would justify suspension or revocation of an existing license, he/she will notify the applicant in writing that the application has been denied and will state such grounds for the denial. If the applicant desires to contest the denial, the applicant must, within 30 days of the date of the notice of denial, make a written request for a hearing to contest the denial. (b) (No change.) (c) Hearings. (1) All hearings will be conducted accordance with the relevant portions of Chapter 401, Subchapter C of this title (relating to Practice and Procedure). (2) After a hearing on the alleged violation and upon finding that a violation and upon finding that a violation did occur, the commission may suspend a license or temporary authorization for a period not to exceed one year or may revoke a license or temporary authorization. The period of a suspension begins on the date of the order invoking the suspension, or the date of the order overruling the motion for rehearing, if one was filed. (3) In the event a licensee has requested an administrative hearing, and has made timely and sufficient application for renewal of its license, the licensee may be issued a temporary authorization to conduct bingo and continue to act pursuant to said authorization until the commission issues a final decision, regardless of whether said license has expired during the hearing process. (d) (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 January 27, 1995. TRD-9501122 Kimberly L. Kiplin General Counsel Texas Lottery Commission Effective date: February 17, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 323-3791 Chapter 403. General Administration 16 TAC sec.403.101 The Texas Lottery Commission adopts new sec.403.101, without changes to the proposed text as published in the November 22, 1994, issue of the Texas Register (19 TexReg 9261). The new section is being adopted to establish the agency's method of recovering costs associated with open records and to implement the provisions of House Bill 1009, Chapter 428, Acts, 73rd Legislature, Regular Session (1993) , requiring agencies to adopt rules specifying charges for copies of open records. The effect of the new section will be standardization of charges representing the full cost, as close as practicable, for providing copies of or access to the agency's public records. This rule is required in order for the agency to comply with House Bill 1009. The rule will inform the public of the charges the agency will make for copies of public records and will set out guidelines applicable to requests for records under the Open Records Act, Texas Government Code, Chapter 552. No comments were received regarding adoption of the new section. This new section is adopted under House Bill 1009, Chapter 428, Acts, 73rd Legislature, Regular Session (1993), which requires agencies to adopt rules setting forth the charges they will make for copies of public information and pursuant to Texas Government Code, sec.467.102 which provides the Texas Lottery Commission with authority to adopt rules for the enforcement and administration of Texas Government Code, Chapter 467 and the laws under the Texas Lottery Commission's jurisdiction. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 27, 1995. TRD-9501120 Kimberly L. Kiplin General Counsel Texas Lottery Commission Effective date: February 17, 1995 Proposal publication date: November 22, 1994 For further information, please call: (512) 323-3791 TITLE 22. EXAMINING BOARDS Part VI. Texas State Board of Registration for Professional Engineers Chapter 131. Practice and Procedure Education 22 TAC sec.131.92 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.92, concerning foreign degrees, without changes to the proposed text as published in the December 6, 1994, issue of the Texas Register (19 TexReg 9583). The rule as amended deletes recognition of engineering degrees accredited by the Accreditation Board of Engineering and Technology (ABET)counterpart organizations in Australia, Ireland, New Zealand, and the United Kingdom because of the difficulty the Board experienced obtaining information regarding the equivalency of these degrees to a United States education. The rule as amended assures that only qualified persons are licensed to practice engineering. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority 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 January 25, 1995. TRD-9501039 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: February 15, 1995 Proposal publication date: December 6, 1994 For further information, please call: (512) 440-7723 Professional Conduct and Ethics 22 TAC sec.131.152 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.152, concerning independent professional judgment, without changes to the proposed text as published in the December 6, 1994, issue of the Texas Register (19 TexReg 9583). The rule as amended clarifies the applicability of the rule as it relates to an engineer's involvement in public service. The section as adopted defines appropriate behavior of engineers in public service with respect to their professional responsibilities. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority 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 January 25, 1995. TRD-9501038 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: February 15, 1995 Proposal publication date: December 6, 1994 For further information, please call: (512) 440-7723 Board of Vocational Nurse Examiners Chapter 239. Contested Case Procedure Reinstatement Process 22 TAC sec.239.55 The Board of Vocational Nurse Examiners adopts the repeal of sec.239.55 concerning the reinstatement process, without changes to the proposed text published in the December 20, 1994, issue of the Texas Register (19 TexReg 10067). The repeal allows for adoption of a new rule which more clearly outline the reinstatement process. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on January 25, 1995. TRD-9501050 Marjorie A. Bronk Executive Director Board of Vocational Nurse Examiners Effective date: February 15, 1995 Proposal publication date: December 20, 1994 For further information, please call: (512) 835-2071 Chapter 240. Peer Review and Reporting 22 TAC sec.240.11, sec.240.12 The Board of Vocational Nurse Examiners adopts the repeal of sec.240.11 and sec.240.12, relative to Peer Review and Reporting, without changes to the proposed text as published in the December 20, 1994, issue of the Texas Register (19 TexReg 10068). The repeal of these rules allows the Board to adopt new rules which include what may be considered minor incidents and allows for the renumbering of those rules being repealed. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provides the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on January 25, 1995. TRD-9501049 Marjorie A. Bronk Executive Director Board of Vocational Nurse Examiners Effective date: February 15, 1995 Proposal publication date: December 20, 1994 For further information, please call: (512) 835-2071 22 TAC sec.sec.240.11-240.13 The Board of Vocational Nurse Examiners adopts new sec. sec.240.11-240.13, relative to Peer Review and Reporting, with changes to the proposed text as published in the December 20, 1994, issue of the Texas Register (19 TexReg 10068). The changes in rule 240.11 are as follows: Subsection (b), second sentence- "indicted" should be "indicate" and their is a typographical error in the seventh sentence which reads "tot he" and should read "to the". Subsection (d)(4) has been broken into two separate numbers (4) and (5). It should be numbered as only (4). Therefore that would make (6) number (5) on the final adoption. Also, in Subsection (d)(4)-(6), following three insert the number (3) . The changes to rule 240.12 are: Subsection (b) remove "employer" from second sentence; Subsection (j) line 10 defense is misspelled, and subsection (m) sentence seven change "is" to "it". There changes to rule 240.13 are: Subsection (h)(1) remove "or" from the end of the sentence and ad "or" to subsection (h)(2). The previous rules 240.11 and 240.12 were deleted in order to allow for addition of a rule determining what is considered a minor incident and allowing for renumbering of those rules The rules will offer guidelines to facilities for peer review and reporting procedures. One comment was received regarding 240.12(f). However, this individual was made aware that this rule had been in effect since 1993 only with a different title. The new rules are adopted under Texas Civil Statutes, Article 4528c, sec.5(g) , which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. sec.240.11. Minor Incidents. (a) The board believes protection of the public is not enhanced by the reporting of every minor infraction that may be a violation of the Vocational Nurse Act. this is particularly true when there are mechanisms in place in the vocational nurse's employment setting to take corrective action, remediate deficits and detect patterns of behavior. This rule is intended to clarify both what constitutes a minor incident and when a minor incident need not be reported to the board. (b) A "minor incident" is defined as "conduct that does not indicate that the nurse's continuing to practice vocational nursing poses a serious risk of harm to the patient or other person". A vocational nurse involved in an incident which is determined to be minor, need not be reported to the board, or the peer review committee, if all of the following factors exist: (1) low risk of physical, emotional or financial harm to the patient, stemming from the incident; (2) the incident is a one-time event with no prior evidence of poor practice; (3) the vocational nurse exhibits a conscientious approach to, and accountability for his/her practice, and; (4) the vocational nurse appears to have the knowledge and skill to practice safely. (c) Other conditions which may be considered in determining that mandatory reporting is not required are: (1) the significance of the event in the particular practice setting; (2) the situation in which the event occurred; and (3) the presence of contributing or mitigating circumstances in the nursing care delivery system. (d) When a decision is made that the incident is minor, the following steps are required: (1) an incident/variance report shall be completed according to the employing facility's policy; (2) the nurse's supervisor shall maintain a record of each minor incident involving the vocational nurse; (3) the nurse's supervisor shall assure that the incident/variance report contains a complete description of the incident, patient record number, witnesses, vocational nurse involved, and action taken to correct or remediate the problem; (4) the nurse's supervisor shall report a vocational nurse to the peer review committee if three minor incidents involving that vocational nurse are documented within a one year time period; and (5) the peer review committee shall review the three minor incidents and make a determination as to whether a report to the board is warranted. (e) In employment settings where no peer review committee is required to exist, the vocational nurse's supervisor shall review minor incidents involving those vocational nurses under his/her supervision and keep the same reports as required is subsection (d)(1), (2), and (3) of this section. The supervisor shall report any vocational nurse involved in three minor incidents within one year to the board. (f) Nothing in this rule is intended to prevent reporting of a potential violation directly to the board. sec.240.12. Mandatory Reporting. (a) Each vocational nurse having reasonable cause to suspect that another vocational nurse has exposed a patient or other person unnecessarily to a serious risk of harm, resulting in further medical intervention and/or death, because of unprofessional conduct, failure to adequately care for a patient, failure to conform to the minimum standards of acceptable vocational nursing practice, or impairment, shall report to the Board in a signed written document, the name of the vocational nurse committing the suspected violation and any other pertinent information within the vocational nurse's knowledge. A vocational nurse without personal knowledge of the suspected violation is not required to report under this Chapter if he or she has reasonable cause to believe the vocational nurse has already been reported. (b) Each employer of a vocational nurse who is believed to have exposed a patient or other person unnecessarily to serious risk of harm, resulting in further medical intervention and/or death, because of unprofessional conduct, failure to adequately care for a patient, failure to conform to the minimum standards of acceptable vocational nursing practice, or impairment, shall report to the Board in a signed, written document, the name of the vocational nurse committing the suspected violation and any other pertinent information within the vocational nurse employer's knowledge. (c) Each vocational nurse employer that regularly employs, hires or otherwise contracts for the services of ten or more vocational nurses shall develop a written plan for identifying and reporting vocational nurses in its service, who expose patients or other persons unnecessarily to a serious risk of harm resulting in further medical intervention and/or death, because of unprofessional conduct, failure to adequately care for a patient, failure to conform to the minimum standards of acceptable vocational nursing practice, or impairment. The plan must include an appropriate process for the review of any incident reportable under this Chapter by a vocational nursing peer review committee established and operated under Rule 241.11, and for the affected vocational nurse to submit rebuttal information to that committee. (Said written plan required by this Chapter shall be in operation by September 1, 1995.) (d) The requirement that a report to the Board be reviewed by a vocational nursing peer review committee applies only to a mandatory report, and review by the peer review committee is only advisory. The requirement may not be construed as subjecting an employer or other person's administrative decision to discipline a vocational nurse to the peer review process or as preventing an employer or other person from taking disciplinary action before review by the peer review committee is conducted. The review by the peer review committee established under subsection (c) of this section must include a determination as to whether or not the vocational nurse undergoing review, engaged in conduct that exposed a patient or other person unnecessarily to a serious risk of harm, resulting in further medical intervention and/or death, because of unprofessional conduct, failure to adequately care for a patient, failure to conform to the minimum standards of acceptable vocational nursing practice, or impairment. The peer review committee's findings shall be included in the report made to the Board under subsection (a) of this section. (e) Each national or state association of vocational nurses that conducts a certification or accreditation program for vocational nurses that expels, decertifies, or takes any other substantive disciplinary action, as defined by the Board, against a vocational nurse as a result of the vocational nurse's failure to conform to the minimum standards of acceptable vocational nursing practice, shall report to the Board in writing the name of the vocational nurse committing the suspected violation and any other pertinent information within the association's knowledge. (f) Each state agency that surveys health-care facilities or agencies with respect to the quality of vocational nursing care provided, unless otherwise expressly prohibited by state or federal law, shall report to the Board in writing any vocational nurse that it has reason to believe exposed a patient or other person unnecessarily to a serious risk of harm resulting in further medical intervention and/or death, because of unprofessional conduct, failure to adequately care for a patient, failure to conform to the minimum standards of acceptable vocational nursing practice, or impairment. (g) If a vocational nurse required to be reported under this Chapter is impaired or suspected of being impaired by dependency on alcohol, chemicals or by mental illness, that vocational nurse, in lieu of being reported to the Board or reviewed by a vocational nursing peer review committee, may be reported to a peer assistance program approved by the Board under Chapter 701, Acts of the 69th Legislature, Regular Session, 1985 (Health and Safety Code Annotated, Chapter 467.) (h) An individual, organization, agency, facility, or other person is not liable in any civil action for failure to file a report required by this Chapter, but the appropriate state licensing agency may take action against a licensed practitioner, agency, or facility for not reporting as required. (i) An individual, organization, agency, facility or other person that, in good faith, makes a report required, permitted or reasonably believed to be required or permitted under this Chapter, is immune from civil liability and may not be subjected to any other retaliatory action as a result of making that report. (j) An individual, organization, agency, facility, or other person named as a defendant in any civil action or subjected to any other retaliatory action as a result of filing a report required, permitted or reasonably believed to be required or permitted under this Chapter, may file a counter-claim in any pending action or may prove a cause of action in a subsequent suit to recover defense costs, including reasonable attorney's fees and actual and punitive damages if the suit or retaliatory action is determined to be frivolous, unreasonable, or taken in bad faith. (k) No person shall suspend, terminate, or otherwise discipline or discriminate against a person reporting, in good faith, under this Chapter. A person has a cause of action against an individual, organization, agency, facility, or other person that suspends or terminates the employment of the person or otherwise disciplines or discriminates against the person for reporting under this Chapter. The person may recover: (1) actual damages, including damages for mental anguish even though no other injury is shown, or $1,000, whichever amount is greater; (2) exemplary damages; (3) costs of court; and (4) reasonable attorney's fees. (l) In addition to amounts recovered under subsection (k)(1) of this section, a person whose employment is suspended or terminated in violation of this subsection is entitled to: (1) reinstatement in the employee's former position or severance pay in an amount equal to three months of the employee's most current salary; and (2) compensation for wages lost during the period of suspension or termination. (m) A person who sues under subsection (k) of this section has the burden of proof, however, if either the Board or court of competent jurisdiction determines that the report made the subject of the cause of action was authorized or required under this Chapter, and that it was made in good faith, it is a rebuttable presumption that a person's employment was suspended or terminated for reporting under this Chapter if the person was suspended or terminated within 60 days after making the report. (n) An action under this Chapter may be brought in the district court of the county: (1) in which the plaintiff resides; (2) in which the plaintiff was employed by the defendant; or (3) in which the defendant conducts business. (o) The Board shall notify each vocational nurse who is reported to the Board under this Chapter of the filing of the report, unless doing so would jeopardize an active investigation. (p) The vocational nurse or the vocational nurse's authorized representative is entitled on request to review any report submitted to the Board under this Chapter unless doing so would jeopardize an active investigation. (q) The vocational nurse or authorized representative may place into the record a statement rebutting any information existing in the report. The statement shall at all times accompany that part of the report being rebutted. The Board, in investigating the report, shall review the statement and evaluate any reasons asserted by the vocational nurse as justifying his or her conduct. (r) If at any time the Board determines that a report submitted under this Chapter is without merit, the report shall be expunged from the vocational nurse's file one year after the date the investigation is closed. (s) A report required or authorized under this Chapter and the identity of the person making the report are confidential and may not be disclosed, except as follows: (1) to the nurse being investigated and/or their authorized representative; (2) to persons involved with the Board in a disciplinary action against the nurse; (3) to peer assistance programs approved by the Board under Chapter 701, Acts of the 69th Legislature, Regular Session, 1985 (Health and Safety Code Annotated, Chapter 467.); (4) law enforcement agencies; (5) nurse licensing or disciplinary boards in other jurisdictions; and (6) persons engaged in bona fide research, if all individual-identifying information has been deleted; (7) with respect to any report made under this Chapter, the Board, on the request of any organization or other person required to report under this Chapter, shall provide to the organization or person, information about the allegations contained in the report, the findings of the peer review committee, and the status of the Board's investigation; or (8) the information may be disclosed in any civil suit in which a person is named as a defendant as a result of the person making the report, or in the prosecution of any cause of action based on a claim that the person making the report was subject to retaliatory action as a result of making the report. (t) This Chapter does not prevent disclosure under Article 4528c, Revised Statutes, of formal charges filed by the Board or a final disciplinary action taken by the Board, in whole or in part, of the submitting of a report under this Chapter. In no event may any report or information submitted as required, or authorized by this Chapter, be available for discovery or court subpoena or introduced into evidence in a vocational nursing liability suit. (u) The filing of a report under this Chapter, an investigation by the Board, or any disposition by the Board, does not prevent an individual, agency, facility, or other person from taking disciplinary action against a vocational nurse. (v) The reporting required under this Chapter does not constitute state action on behalf of the person or organization reporting. (w) The Board shall inform, in the manner deemed appropriate, vocational nurses, facilities, agencies, and other persons of their duty to report under this Chapter. sec.240.13. Vocational Nurse Peer Review. (a) "Peer review" is the evaluation of vocational nursing services, the qualifications of vocational nurses, the quality of patient care rendered by vocational nurses, the merits of complaints concerning vocational nurses and vocational nursing care, and determinations or recommendations regarding complaints including: (1) the accuracy of vocational nursing assessments and observations; (2) the appropriateness and quality of care rendered by a vocational nurse within the scope of vocational nursing practice; (3) the reports made to a vocational nursing peer review committee concerning activities under the committee's review authority; (4) the reports by a vocational nursing peer review committee to other committees or to the Board as permitted or required by law; and (5) the implementation of duties of a vocational nursing peer review committee by its members, agents, or employees. (b) "Peer review committee" is a committee composed of at least a majority of professional and vocational nurses established under the authority of a national, state, or local vocational nursing association, long-term care facility, home health agency, nursing service agency, or other health-care facility or established employer or state agency or political subdivision for the purpose of conducting peer review. A peer review committee includes the employees and agents of the facility/agency, and any other person or organization that is employed by or serves the committee in any capacity. (c) The peer review process may be conducted under the auspices of a professional peer review committee that includes designated slots for vocational nurses. Peer review of vocational nurses does not require a committee with a majority of vocational nurses. (d) Except as otherwise provided by this Chapter, all proceedings of a peer review committee are confidential and all communications made to a peer review committee are privileged. A member, agent, or employee of a peer review committee or a participant in any proceeding before the committee may not disclose or be required to disclose a communication made to the committee or a record or proceeding of the committee. (e) A person who attends a proceeding or a peer review committee may not disclose or be required to disclose any information acquired in connection with or in the course of the proceeding or disclose any opinion, recommendation, or evaluation of the committee or any member of the committee. (f) The members of a peer review committee and the persons who provide information to the committee may not be questioned about their testimony before the committee or about opinions formed as a result of the committee proceedings. (g) Except as otherwise permitted by this Chapter, all information made confidential by this Chapter is not subject to subpoena or discovery in any civil matter, is not admissible as evidence in any judicial or administrative proceeding, and may not be introduced into evidence in a liability suit arising out of the provisions of or failure to provide vocational nursing services within the scope of vocational nursing practices. (h) A peer review committee shall disclose upon written request, the written or oral communications made to the committee and the records and proceedings of the committee to: (1) the state board of registration or licensure of any state; (2) a law enforcement authority investigating a criminal matter; or (3) the vocational nurse and/or their authorized representative. (i) A peer review committee may disclose upon written request, the written or oral communications made to the committee and the records and proceedings of the committee to: (1) the association, agency, facility, or other organization under whose authority the committee is established; (2) another established and identified nursing peer review committee; (3) a peer assistance program approved by the Board under the Health and Safety Code Annotated, Chapter 467; (4) appropriate state or federal agencies or accrediting organizations which accredit health-care facilities, or which survey facilities for quality of care; or (5) persons engaged in bona fide research, if all individual-identifying information has been deleted. (j) If a peer review committee discloses information under this Chapter that could result in the reprimand, suspension, termination, or other disciplinary action of a vocational nurse, or itself recommends or takes such action, the committee shall provide the nurse with a detailed summary of information disclosed or the basis of its action or recommendation. The vocational nurse shall be permitted an opportunity to offer rebuttal information and to submit a rebuttal statement of reasonable length. The rebuttal statement shall be included in the information disclosed. (k) If a peer review committee discloses information to a vocational nurse under this Chapter, the committee has not, by that action, waived the privilege of non-disclosure of committee information and proceedings. (l) The peer review committee disclosing and the person receiving the information disclosed under this Chapter, shall protect, to the extent possible, the identity of the patients. (m) A member of a peer review committee or a person participating in peer review under this Chapter, who is named as a defendant in a civil action or subject to other retaliatory action as a consequence of the person's participation in peer review, may use information that is confidential under this Chapter in defense of the civil action, or in a civil action based on an allegation of retaliation for the person's participation in peer review. (n) If a person discloses information under this Chapter, the person has not, by that action, waived the privilege of non-disclosure of all other information privileged under this Chapter. (o) A cause of action does not accrue against the members, agents, or employees of a peer review committee or against a long-term care facility, home health agency, nursing service agency, or other health-care facility or established employer, the nursing staff of such facility, or other organization from any act, statement, determination or recommendation made, or act reported, in good faith, in the course of peer review as defined in this Chapter. A person who, in good faith, furnishes records, information, or assistance to a peer review committee is not liable in a civil action based on the person's participation or assistance in peer review, and may not be subjected to retaliatory action as a result of such act. (p) A peer review committee, a person participating in peer review, or an organization, named as a defendant in any civil action or subjected to other retaliatory action as a result of participation in peer review, may file a counterclaim in any pending action or may prove a cause of action in a subsequent suit to recover any defense costs, including court costs, reasonable attorney's fees and actual and punitive damages if the suit of retaliatory action is determined to be frivolous, unreasonable, without foundation, or taken in bad faith. (q) A court may not enjoin the activities of a peer review committee under this Chapter. (r) The provisions of this Chapter may not be nullified by contract. 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 authority. Issued in Austin, Texas, on January 25, 1995. TRD-9501052 Marjorie A. Bronk Executive Director Board of Vocational Nurse Examiners Effective date: February 15, 1995 Proposal publication date: December 20, 1994 For further information, please call: (512) 835-2071 Part XIV. Texas Optometry Board Chapter 271. Examinations 22 TAC sec.271.6 The Texas Optometry Board adopts an amendment to sec.271.6, concerning examinations, with changes to the proposed text as published in the December 16, 1994, issue of the Texas Register (19 TexReg 9950) and corrections published in the January 10, 1995, issue of the Texas Register (20 TexReg 172). Section 271.6 is required in order to inform applicants for licensure of the competency clinical examination which may be taken by the applicant and establishes procedures which will allow candidates an option to sit for a national examination or the Board's clinical examination. One comment was received from a licensee who did not speak for or against the rule, but requested clarifying information be included within the rule as to definitive timelines for accepting the National Board Examination. The Board did incorporate that suggestion into the rule. The amendment is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.2.14, which provide the Texas Optometry Board with the authority to promulgate procedural and substantive rules. sec.271.6. National Board Examination. (a) The board determines that the written examination by the National Board of Examiners in Optometry (NBEO) complies in all material respects with the requirements of the Act, sec.3.05 and sec.3.06. The passing score on each Part of the National Board written examination is determined by the criterion- referenced standard setting approach, in which the passing score is set at the scaled score of 300. The Texas Optometry Board will accept scores from an NBEO written examination if the final Part was satisfactorily completed on or after January 1, 1984. (b) The board determines that the practical examination known as Part III by the National Board of Examiners in Optometry (NBEO) complies in all material respects with the requirements of the Act, sec.3.05 and sec.3.06. The passing score on Part III shall be determined by the NBEO. Beginning June 1, 1995, an applicant for licensure shall have the option to sit for the practical examination given by the Texas Optometry Board or Part III of the NBEO. It is the intent of the board to eliminate its practical examination after the administration of the June, 1996, Examination. The board will accept scores from an NBEO Part III examination if Part III was satisfactorily completed on or after June of 1994. (c)-(d) (No change.) (e) In addition to the written and practical examinations referenced in subsections (a) and (b) of this section, all applicants shall take and pass a written jurisprudence examination given by the Texas Optometry Board in order to be eligible for licensure. (f) Each applicant shall submit a true and correct copy of the applicant's score report to the executive director, and such other evidence of having achieved a passing grade on each Part of the NBEO examination as the executive director may determine. Such satisfactory evidence of passage of the NBEO examination must be submitted to the executive director within 12 months of successful passage of the board's jurisprudence examination, otherwise, the applicant must reapply and take and pass the board's jurisprudence examination. No license will be issued to an applicant until evidence of passage of the NBEO examination is received. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 24, 1995. TRD-9501055 Lois Ewald Executive Director Texas Optometry Board Effective date: February 15, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 835-1938 Chapter 273. General Rules 22 TAC sec.273.5 The Texas Optometry Board adopts an amendment to sec.273.5, concerning general rules, without changes to the proposed text as published in the December 16, 1994, issue of the Texas Register (19 TexReg 9951) and corrections published in the January 10, 1995, issue of the Texas Register (20 TexReg 173). Section 273.5 is required in order to expand the definition of an educational institution to allow for limited licenses to be issued to optometric faculty members involved in clinical settings within education institutions accredited by a State recognized accrediting entity, in addition to colleges of optometry accredited by the Council on Optometric Education of the American Optometric Association. No comments were received regarding adoption of the amendment. The amendment is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.2.14, which provide the Texas Optometry Board with the authority to promulgate procedural and substantive rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 24, 1995. TRD-9501056 Lois Ewald Executive Director Texas Optometry Board Effective date: February 15, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 835-1938 Chapter 277. Practice and Procedure 22 TAC sec.277.1 The Texas Optometry Board adopts an amendment to sec.277.1, concerning practice and procedure, without changes to the proposed text as published in the December 16, 1994, issue of the Texas Register (19 TexReg 9952). Section 277.1 is required in order to inform licensees of the procedures which will be followed in conducting informal conferences and to allow discretion in referring a second alleged violation for formal disciplinary hearing. No comments were received regarding adoption of the amendment. The amendment is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.2.14, which provide the Texas Optometry Board with the authority to promulgate procedural and substantive rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 24, 1995. TRD-9501057 Lois Ewald Executive Director Texas Optometry Board Effective date: February 15, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 835-1938 TITLE 25. HEALTH SERVICES Part VIII. Interagency Council on Early Childhood Intervention Services Chapter 621. Early Childhood Intervention Early Childhood Intervention Service Delivery 25 TAC sec.621.31 The Interagency Council on Early Childhood Intervention Services adopts an amendment to sec.621.31, with changes to the proposed text as published in the November 15, 1994, issue of the Texas Register (19 TexReg 8930). The justification for the amendment is to update legal citations and reflect the State Office of Administrative Hearing's involvement in the formal hearings process. The amendment will function by establishing current and clear rules concerning established procedures for processing contested cases. No comments were received regarding adoption of the amendment. However, the council is adopting sec.621.31(h) with a change to substitute "administrative law judge" for "hearing examiner" for consistency throughout the section. The amendment is adopted under the Human Resources Code, sec.73.003, which authorizes the Interagency Council on Early Childhood Intervention Services to establish rules regarding services provided for children with developmental delays. The amendment implements the Human Resources Code, sec. sec.73.001-73.021. sec.621.31. Formal Hearing Procedures. (a) Purpose. This section covers the formal hearing procedures and practices that will be available to persons or parties who request formal hearings before the Interagency Council on Early Childhood Intervention Services (council). The intended effect of these procedures is to implement the contested case provisions of the Administrative Procedure Act (APA), Title 10 of the Texas Government Code, sec.2001.001. These hearing procedures will be used for all providers funded by the council, except instances when the rules provide that another fair hearing procedure will be used or when the council elects to undertake a new or different program direction. Hearings will be conducted in accordance with the Act, rules of the State Office of Administrative Hearings, and the rules of the council. State Office of Administrative Hearing rules may be obtained from that office. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Administrative law judge (ALJ)-Any person designated or appointed as the agent or representative of the State Office of Administrative Hearings to conduct hearings provided for by rules of the council. (2) Contested case-A proceeding in which the legal rights, duties, or privileges of a party are to be determined by the council after an opportunity for an adjudicated hearing. (3) Party-Each person or agency named or admitted as a party by the administrative law judge as having a justiciable interest in the matter being considered. (4)-(5) (No change.) (c) Applicability and scope of rules. (1) The provisions of this section shall apply in all cases when the council proposes to cancel a contract with a provider, withhold funds from a provider, or deny continuation funding to a provider. (2) All matters not specifically included in the procedural rules adopted by the council shall be governed by the Act and the State Office of Administrative Hearings Rules of Procedure. (d) Filing of documents. All petitions, complaints, motions, protests, replies, answers, notices, and other pleadings relating to any proceeding governed by this section which is pending or to be instituted with the council shall be filed with the State Office of Administrative Hearings. They shall be deemed filed only when actually received by the State Office of Administrative Hearings. (e) Computation of time; extension. (1) (No change.) (2) The time for the doing of any act under this section may be extended by order of the administrative law judge, upon written motion duly filed with him prior to the expiration of the applicable period of time for the doing of same, showing that there is good cause for such extension of time and that the need therefor is not caused by neglect, indifference, or lack of diligence of movant. A copy of such motion shall be served upon all other parties to the proceeding contemporaneously with the filing thereof. (f) Notice and service in proceedings. (1) (No change.) (2) Notice shall include: (A)-(D) (No change.) (E) a statement that any party can appear in person or by his counsel and be heard. (3) (No change.) (4) The council shall mail the notice of the proposed contract cancellation, withholding of funds, or denial of continuation funding by certified or registered mail to the last known place of address of the person entitled to receive such notice. (5) A copy of any protest, reply, answer, motion, or other pleadings filed by any party in any proceedings subsequent to the institution thereof shall be mailed or otherwise delivered by the party filing the same to every other party of record. If any party has appeared in the proceeding by attorney or other representative authorized under this section to make appearance, service shall be made upon such attorney or other representative. (6) (No change.) (g) Request for hearing. Any person who receives a written notice to propose to cancel the contract, withhold funding, or deny continuation funding must file a request for hearing with the Early Childhood Intervention (ECI) Program executive director through the ECI office, 1100 West 49th Street, Austin, Texas 78756-3179 within ten days of receipt of the notice. The request for hearing shall be deemed filed only when actually received by such office. Failure to file a request for hearing shall be considered a waiver by the person of his right to a fair hearing after the action is taken to cancel the contract, withhold funding, or deny continuation funding, and ECI shall proceed to finalize its earlier decision. The request for hearing shall include: (1)-(3) (No change.) (h) Appointment of the administrative law judge. (1) Hearings will be conducted by an administrative law judge appointed by the State Office of Administrative Hearings upon receipt of a request for hearing from the ECI executive director. (2) The administrative law judge shall have authority to administer oaths, to examine witnesses, and to rule upon the admissibility of evidence and amendments to pleadings. The administrative law judge shall have the authority to recess any hearing from day to day. (i) Subpoenas. (1) On its own motion or on the written request of any party to the hearing, ECI shall issue a subpoena to the appropriate sheriff or constable to require the attendance of witnesses or the production of documents at the hearing. (2) There has to be a show of good cause for the subpoena, i. e., the witnesses or documents must have information that is relevant and material to the hearing and the subpoena should not result in undue harassment, imposition, inconvenience, or expense to a party to the hearing. (3) A party or witness may seek to quash the subpoena or move for a protective order as provided in Texas Rules of Civil Procedure. (4) Witnesses may be subpoenaed from any place in the State of Texas. (5) Documents include books, papers, accounts, and similar materials or objects. (6) The payment of subpoena costs or fees and the failure to comply with a subpoena shall be governed by the Administrative Procedure Act, sec.2001.094 and sec.2001.103. (j) Depositions. The taking and use of depositions in any contested case proceeding shall be governed by the Administrative Procedure Act, sec.2001.094 and sec.2001.103. (k) Prehearing conferences. (1) In a contested case, the administrative law judge, on his own motion or the motion of a party, may direct the parties, their attorneys or representatives to appear at a specified time and place for a conference prior to the hearing for the purpose of: (A) the formulation and simplification of issues; (B) the necessity or desirability of amending the pleadings; (C) the possibility of making admissions or stipulations; (D) the procedure at the hearing; (E) specifying the number of witnesses; (F) the mutual exchange of prepared testimony and exhibits; (G) designation of parties; and (H) other matters which may expedite the hearing. (2) The administrative law judge will conduct the prehearing conference in such manner and with the necessary authority to expedite the conference while reaching a fair, just, and equitable determination of any matters or issues being considered. (3) The administrative law judge will have the minutes of the conference recorded in an appropriate manner and will issue whatever orders are necessary covering the said matters or issues. (4) Any action taken at the prehearing conference shall be reduced to writing, signed by the parties, and made a part of the record. (l) Motions. Any motion relating to a pending proceeding governed by this section shall, unless made during a hearing and dictated into the record, be written and shall set forth the relief sought, the specific reasons and grounds therefore, and shall be supported by affidavit if based upon matters which do not appear of record. Motions not made during a hearing shall be filed with the administrative law judge, who shall act upon it at the earliest practicable time. (m) Hearing procedure. (1) The administrative law judge's duties. The administrative law judge will preside over and conduct the hearing. On the day and time designated for the hearing, the administrative law judge shall: (A) convene and call the hearing to order; (B) state the purpose of and the legal authority for the hearing; (C) announce that a record of the hearing will be made; (D) outline the procedure and order of presentation that will be followed; (E) administer oaths to those who intend to testify; and (F) take any and all other actions as authorized by applicable law and these sections to provide for a fair, just, and proper hearing. (2) Order of presentation. (A) After making the necessary introductory and explanatory remarks on the purpose of the hearing, the administrative law judge will begin receiving testimony and evidence from the witnesses. (B) Each party may present evidence and testimony and cross-examine or ask clarifying questions of any witness who presents evidence or testimony. (C) The party who proposes to withhold funds or who proposes to cancel the contract has the burden of proving that the actions or proposed actions are justified; provided, however, that the order of proceeding may be altered or modified by the administrative law judge upon agreement of the parties or upon his own motion when such action will expedite the hearing without prejudice to any party. (D) When the party first proceeding finishes his case, the remaining party or parties will be allowed to present evidence and testimony in the same manner. Each witness is subject to cross-examination and clarifying questions by other participants to the proceedings. (E) The administrative law judge may limit the number of witnesses whose testimony will be repetitious, and he may also establish time limits for testimony so long as all viewpoints are given a reasonable opportunity to be expressed. (F) The administrative law judge, at his discretion, may allow final arguments or take the case under advisement, note the time, and close the hearing. For sufficient cause, the administrative law judge may hold the record open for a stated number of days for the purpose of receiving additional evidence into the record. (3) Consolidation. The administrative law judge, upon his own motion or upon motion by any party, may consolidate for hearing two or more proceedings which involve substantially the same parties or issues. Proceedings before the administrative law judge shall not be consolidated without consent of all parties to such proceedings, unless the administrative law judge finds that such consolidation will be conducive to a fair, just, and proper hearing and will not result in unwarranted expense or undue delay. (4) Conduct and decorum during the hearing. Every party, witness, attorney, representative, or other person shall exhibit in all hearings proper dignity, courtesy, and respect for the administrative law judge and all other persons participating in or observing the hearing. The administrative law judge is authorized to take whatever action he deems appropriate to maintain the proper level of decorum and conduct, including, but not limited to, recessing the hearing to be reconvened at another time or place or excluding from the hearing any party, witness, attorney, representative, or other person for such period and upon such conditions as the administrative law judge deems fair and just. (5) The hearing record. The hearing record will include: (A) all pleadings, motions, and intermediate rulings; (B) evidence received or considered; (C) a statement of matters officially noticed; (D) questions and offers of proof, objections, and rulings of them; (E) proposed findings and exceptions; (F) any decision, opinion, or report by the administrative law judge; and (G) all staff memoranda or data submitted to or considered by the administrative law judge or members of the council who are involved in making the decision. (6) Recording the hearing. (A) The administrative law judge may keep either a stenographic or magnetic tape record of the hearing proceeding. A court reporter may be present to record the hearing. The expenses of the court reporter shall be borne by the party requesting the service. (B) In those cases when a magnetic tape recording of the formal hearing is made, the administrative law judge shall make such recording available to any party requesting permission to hear or, with appropriate protective measures, allow such recording to be duplicated. (7) Assessing the cost of a transcript. (A) In accordance with the APA, sec.2001.059, proceedings, or any part of them, shall be transcribed on written request of any party. The council may pay the cost of the transcript or assess the cost to one or more parties. (B) In the event a final decision of the council is appealed to the district court wherein the council is required to transmit to the reviewing court a written transcript of the hearing proceeding, or any part thereof, the council may: (i) require the appealing party to file with the agency the original and one copy of such written transcript; or (ii) acquire such written transcript directly from the court reporter or other person preparing the same and thereafter assess the cost of the original and one copy of such transcript against the appealing party as reimbursement for the cost of same. (8) Rules of evidence. The administrative law judge, at a hearing, a reopened hearing, or a rehearing will apply the rules of evidence under the APA, sec.sec.2001.201-2001.88, and the following rules. (A) Consolidation. The administrative law judge may consolidate the testimony of parties or persons if the evidence can be effectively consolidated into one document or the testimony of one witness. The standard by which the administrative law judge shall judge this consolidation is whether each party or person can offer unique or new evidence that has not been previously introduced. Any party under oath may make an offer of proof of the testimony or evidence excluded through consolidation by dictating into the record or submitting in writing the substance of the proposed testimony prior to the conclusion of the hearing. (B) Documentary evidence. Documentary evidence should be presented in its original form but if the original is not readily available, documentary evidence may be received in the form of copies or excerpts. On request, parties shall be given an opportunity to compare the copy with the original. When numerous documents are offered, the administrative law judge may limit the documents in his discretion, or require the abstracting of the relevant data from the documents and presentation of the abstracts in the form of exhibits; provided, however, that before making such requirement, the administrative law judge shall require that all parties of record or their representatives be given the right to examine the documents from which such abstracts were made. Any party may make an offer of proof of the documents which are excluded by the administrative law judge's decision to remove only typical or representative documents. (C) Exhibits. (i) Form. Exhibits of documentary character shall be limited to facts material and relevant to the issues involved in a particular proceeding, and the parties shall make a reasonable effort to introduce exhibits which will not unduly encumber the files and records of the agency. (ii) Tender and service. The original of each exhibit offered shall be tendered to the administrative law judge or a designee for identification and shall be offered to the parties for their inspection prior to offering or receiving the same into evidence. (iii) Excluded exhibits. In the event an exhibit has been identified, objected to, and excluded, it shall be given an exhibit number for purposes of identification and shall be included in the record under seal. (iv) After hearing. Unless specifically directed by the administrative law judge, no exhibit will be permitted to be filed in any proceeding after the conclusions of the hearing except in a reopened hearing or a rehearing. (D) Admissibility of prepared testimony and exhibits. When a proceeding will be expedited and the interests of the parties will not be prejudiced substantially, evidence may be received in written form. The prepared testimony of a witness upon direct examination, either in narrative or question and answer form, may be incorporated in the record as if read or received as an exhibit, upon the witness being sworn and identifying the same as a true and accurate record of what his testimony would be if he were to testify orally. The witness shall be subject to clarifying questions and to cross-examination and his prepared testimony shall be subject to a motion to strike either in whole or in part. (E) Official notice. Official notice by the administrative law judge shall be governed by APA, sec.2001.090. Further, official notice may be taken of any statute, ordinance, or duly promulgated and adopted rules or regulations of any governmental agency. The administrative law judge shall indicate during the course of a hearing that information of which he will take official notice. When the administrative law judge's findings are based upon official notice of a material fact not appearing in the evidence of record, the administrative law judge shall set forth in his proposal for decision those items with sufficient specificity so as to advise the parties of the matters which have been officially noticed. The parties shall have the opportunity to show to the contrary through the filing of exceptions to the administrative law judge's proposal for decision. (9) Informal disposition of case. Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default. (10) Agreements in writing. No stipulation or agreement between the parties, their attorneys or representatives, with regard to any matter involved in any proceeding shall be enforced unless it shall have been reduced to writing and signed by the parties or their authorized representatives, dictated into the record during the course of a hearing, or incorporated in an order bearing their written approval. This subsection does not limit a party's ability to waive, modify, or stipulate away any right or privilege afforded by this section. (n) Action after the hearing. (1) Reopening of hearing for new evidence. (A) The administrative law judge may reopen a hearing where new evidence is offered which was unobtainable or unavailable at the time of the hearing. (B) The administrative law judge will reopen a hearing to include such new evidence as part of the record if the administrative law judge deems such evidence necessary for a proper and fair determination of the case. The reopened hearing will be limited to only such new evidence. (C) Notice and procedural requirements will be the same as for the original hearing. (2) Proposal for decision. (A) The administrative law judge shall prepare a proposal for decision within ten days after the hearing is closed and provide copies of the same to all parties. This time may be extended by the administrative law judge due to workload issues. (B) Each party having the right and desire to file exceptions and briefs shall file them with the administrative law judge within the time designated by the administrative law judge. (C) Parties desiring to do so shall file written replies to these exceptions and briefs as soon as possible after receiving same, and within the time designated by the administrative law judge. (D) All exceptions and replies to them shall be succinctly stated. (3) Filing. At any time after the record has been closed in a contested case, and prior to the administrative decision becoming final in such case, all briefs, exceptions, written objections, motions (including motion for rehearing), replies to the foregoing, and all other written documents shall be filed with the administrative law judge; and further, the party filing such instrument shall provide copies of the same to all other parties of record by first class United States mail or personal service and certify, in writing thereon, the names and addresses of the parties to whom copies have been furnished, as well as the date and manner of service. (4) Final decision. (A) The final decision will be rendered by a majority of a quorum of the council, unless the authority to render a final decision is delegated to the administrative law judge. (B) All final decisions shall be in writing and shall set forth the findings of fact and conclusions of law required by law, either in the body of the order or by reference to the administrative law judge's proposal for decision. (C) All final decisions shall be signed by each member of the council who made up the quorum which rendered the final decision. (D) A copy of all final decisions shall be timely provided to all parties as required by law. (E) When a contract has been canceled, either upon a final decision of the council or by mutual agreement prior thereto, or a decision to deny continuation funding, the provider shall notify parents of all children served by the provider that ECI approval has been canceled. If the provider fails to so notify the parents and furnish satisfactory documentation to the council within 30 days that such notification has been made, the ECI executive director may thereupon serve such notice upon said parents. (o) Decisions and orders. (1) Motion for rehearing. A decision is final, in the absence of a timely motion for rehearing, on the expiration of the period for filing a motion for rehearing and is final and appealable on the date of rendition of the order overruling the motion for rehearing, or on the date the motion is overruled by operation of law. If the council finds that an imminent peril to the public health, safety, or welfare requires immediate effect of a final decision in a contested case, the finding in a decision shall be recited as well as the fact that the decision is final and effective on the date rendered, in which event the decision is final and appealable on the date rendered and no motion for rehearing is required as a prerequisite for appeal. (2) Final decision. The final decision must be rendered within 30 days after the date the hearing is finally closed. The time period for the final decision shall be extended if the conclusions of law or findings of fact are not submitted timely to the council by the administrative law judge. (3) Appeals. Except as otherwise provided in paragraph (1) of this subsection, a motion for rehearing is a prerequisite to an appeal. A motion for rehearing must be filed within five days after the date of rendition of a final decision. (p) Hearing procedure for denial of the continuation of a grant to a provider. The hearing procedure described in subsections (a)-(o) of this section shall govern all such proceedings except that in subsection (n)(4)(C) of this section concerning the hearing procedure the party who has been denied the continuation of funding and is requesting that the decision of the council to deny funding be reversed has the burden of proving that such an action is justified. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 27, 1995. TRD-9501137 Nancy Murphy Section Manager, Media and Policy Services Interagency Council on Early Childhood Intervention Services Effective date: February 17, 1995 Proposal publication date: November 15, 1994 For further information, please call: (512) 450-3765 Procedural Safeguards and Due Process Procedures 25 TAC sec.621.49 The Interagency Council on Early Childhood Intervention Services (council) adopts new sec.621.49, without changes to the proposed text as published in the December 16, 1994, issue of the Texas Register (19 TexReg 9954). The section is justified to establish the process by which the public may gain access to public records and public information from the office of the Interagency Council on Early Childhood Intervention Services. The section will function by providing the opportunity for the public to review and reproduce public records and public information in order to become knowledgeable of the agency functions. No public comments were received regarding adoption of the section. The new section is adopted under the Human Resources Code, sec.73.003, which authorizes the Interagency Council on Early Childhood Intervention Services to establish rules regarding services provided for children with developmental delays, and the Government Code, Chapter 552, which provides the council with the authority to promulgate rules under which public records may be inspected. The new section implements the Human Resources Code, sec. sec.73.001-73.021, and the Government Code, sec.552.230. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 27, 1995. TRD-9501138 Nancy Murphy Section Manager, Media and Policy Services Interagency Council on Early Childhood Intervention Services Effective date: February 17, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 450-3765 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 5. Property and Casulty Insurance Subchapter Q. Independent 28 TAC sec.5.13000 The Texas Department of Insurance adopts new sec.5.13000, concerning the adoption of a Fee Schedule for companies licensed to write lines of insurance included within or reporting under the Texas Commercial Lines Statistical Plan, the Texas Private Passenger Automobile Statistical Plan and the Texas Residential Property Statistical Plan pursuant to the Insurance Code, Article 21.69, with changes to the proposed Fee Schedule that was printed as an appendix to the proposed text as published in the October 21, 1994 issue of the Texas Register (19 TexReg 8348). The new section adopts a Fee Schedule for companies licensed to write lines of insurance included within or reporting under certain statistical plans to the Texas Department of Insurance (TDI) through Acxiom Corporation. The new section is necessary to provide procedures for the statistical agent to collect fees from insurers for the services of collecting, maintaining and reporting insurance statistical data. Under Article 21.69, Acxiom Corporation of Conway, Arkansas was selected as the statistical agent for the collection, maintenance and reporting to TDI of commercial lines, private passenger automobile, and residential property statistical data. Under TDI's contracts with Acxiom, Acxiom is responsible for the invoicing and collection of amounts for Acxiom's services under the contracts. In authorizing the invoicing and collection of statistical data fees by Acxiom, TDI followed the historical approach to collecting the fees to pay for data collection. Statistical agents that were previously designated by TDI for the collection, maintenance and reporting of insurance statistical data, invoiced and collected directly from reporting companies the statistical agents' fees for providing those services. In enacting Article 21.69 of the Insurance Code, the Legislature authorized TDI to contract with a qualified entity but did not specifically prescribe the contractual requirements. The Legislature did not appropriate any funds to TDI for payment of the selected contractor and clearly the legislature was aware of the invoicing and collection system that had been used for many years by the statistical agents and insurers. Since the Legislature could not have intended an unfunded contract and it is implicit that TDI has the authority to contract on terms and conditions in the best interest of TDI and the State of Texas, TDI contracted with Acxiom to invoice to and collect from companies Acxiom's fees for performance under the contracts. In response to comments TDI has amended three sections of the Fee Schedule. Section 4.05 of the Fee Schedule contained typographical errors which were corrected. The words "Private Passenger Auto" were changed to "Residential Property" and the amount of $56,160 was changed to $51,106. Table 4.09 of the Fee Schedule, which is the Schedule For Invoicing, contained some incorrect invoice dates. In the Residential Property and Private Passenger Auto columns the October 10, 1994 date was deleted. In the Commercial Lines Column the April 10, 1995 and July 10, 1995 dates were deleted. Additionally, a statement was added to Table 4.09 clarifying that the first invoice for each of the three lines may include more than one quarter's billing. Section 5.03C of the Fee Schedule was amended to say that a schedule of penalties and incentives would be adopted by rule rather than be issued by the Department. The effects of the new section include providing an orderly, efficient, and familiar system for the insurers to pay for the services of Acxiom to collect, maintain, and report insurance statistical data. The section adopts a Fee Schedule for companies licensed to write lines of insurance reporting under the Texas Commercial Lines Statistical Plan, the Texas Private Passenger Automobile Statistical Plan and the Texas Residential Property Statistical Plan. The Fee Schedule is attached an appendix to each of these statistical plans. Section I of the Fee Schedule defines terms frequently used. Section II of the Fee Schedule addresses "Development Fees" and the procedures for estimating the total development fees and allocating each company's share of the development fees. Section III of the Fee Schedule specifies procedures for invoicing of Miscellaneous Fees. Section IV of the Fee Schedule address "Ongoing Fees" and estimates annual ongoing fees, specifies a procedure for calculating a reporting company's ongoing fees, and a schedule for invoicing of ongoing fees. Section V of the Fee Schedule specifies data reporting standards, incentives, and penalties. Section VI of the Fee Schedule contains other important information which governs such matters as procedures for past due accounts, procedures for resolving bill disputes, and procedures for fee schedule revisions. For: No comments were received in favor of the proposal as published. Against: State Farm Insurance Companies, the American Insurance Association, and Acxiom submitted written comments objecting to parts of the proposal as published. Comment: One commenter believes that sec.2.02, paragraph A of the Fee Schedule has omitted the following lines of insurance: 2.2 Multiple Peril Crop, 3.0 Farmowners Multiple Peril, 4.0 Homeowners Multiple Peril, 5.1 Commercial Multiple Peril (Liability Portion), 11 Medical Malpractice, 10 Financial Guaranty, 18 Product Liability, 19.1 Private Passenger Auto No-Fault, 19.3 Commercial Auto No-Fault, and 31 Aggregate Write-In for Other Line of Business. Agency Response: The Department disagrees. Section 2.02 Paragraph A lists the general lines of insurance for which statistical data is being collected. The lines of insurance which the commenter suggests are being omitted are the categories of insurance delineated in the Annual Statement. These "Annual Statement" lines are subsumed in the general lines of insurance listed in sec.2. 02 paragraph A. Comment: One commenter objected to the deletion of Paragraph C in sec.2.02 of the Fee Schedule which addressed the issues of potential development fees for services outside the scope of the Fee Schedule and the ongoing fees for the maintenance of an edit package. Agency Response: Staff deleted paragraph C because the edit package fees and potential development fee for services outside the scope of the Fee Schedule are issues which have not as yet been resolved. Staff intends to clarify these issues in a subsequent revision of the Fee Schedule. Comment: One commenter pointed out that the first invoice was actually dated July 6, 1994 and mailed July 8, 1994, however, the fee schedule recites that the companies will be invoiced on July 15, 1994. Agency Response: The fee schedule approved by TDI listed July 15, 1994 as the date of invoice. The fact that the invoices were mailed out on July 8, 1994 is inconsequential. Comment: One commenter believes that because of the fact that reporting for all lines of insurance are not required for all quarters this might cause confusion regarding a reporting company's payment of the minimum Ongoing Fee. The commenter recommended clarifying sec.4.03 of the Fee Schedule by adding the language "required to be reported during that reporting period" to the last sentence. Agency Response: The Department disagrees. This existing language is sufficiently clear and the addition of the commenter's language would merely be surplusage. 4.05 of the Fee Schedule contains a typographical error in item (D) and the words "Private Passenger Auto" should be changed to "Residential Property" and the amount should be changed from $56,160 to $51,100. Agency Response: The Department agrees and has changed the sections accordingly. Comment: One commenter points out that in Table 4.09 of the Fee Schedule the first date listed under the Residential Property and Private Passenger Auto columns should be January 10, 1995 and October 10, 1994 should be deleted. With respect to the Commercial Lines dates the first date listed should be October 10, 1995 and April 10, 1995 and July 10, 1994 should be deleted. Table 4.09 should also have a note adding that the first invoice for each of the three lines may include more than one quarter's billing. Agency Response: The Department agrees and has made the necessary additions and deletions. Comment: One commenter questioned whether it is feasible to issue a complete and comprehensive schedule of penalties and incentives by lines of business before the end of 1994. Agency Response: Staff agrees and has changed the section to indicate that a schedule of penalties and incentives would be adopted by rule rather than merely issued by the end of the year. Comment: Two commenters asserted that TDI has no authority under the Insurance Code, Articles 5.25 and 21.69 to assess insurers for the cost of TDI's contract with Acxiom and that any funding for the independent data contract should be appropriated by the Legislature to ensure legislative oversight. Agency Response: Staff disagrees. The legislature clearly intended that TDI was authorized to contract with an independent organization for data collection under Article 21.69. Article 5.25, although it only applies to fire and allied lines, authorizes the commissioner to designate an agent to gather, audit and compile experience and provides that the cost shall be borne by insurers. The grant of authority in Article 21.69 would be inoperative without the accompanying authority to collect fees to cover the cost of the independent data collection. The commenter's construction of 21.69 is that since it does not specifically address the issue of fee invoicing and collection that it is impermissible for TDI to authorize Acxiom to invoice and collect fees from the insurer. The commenter further argues that this imposition of fees amounts to a tax or assessment. If this construction were adopted, it would mean that 21.69 would be inoperable because it would require further legislation to be enacted to appropriate the necessary funds. Futhermore, TDI's assessment of Acxiom's fees as part of the maintenance tax would not be appropriate since the fees are not part of the tax base, since the Legislature appropriated no corresponding funds to allow TDI to pay Acxiom from the assessed fees, and since an allocation of fees based on the lines of insurance for which reported premiums determine the maintenance taxes is not equivalent to, or as equitable as, an allocation based on the lines of insurance that are included within the corresponding statistical plans. A cardinal rule of statutory construction is that a statute will be construed in such a manner as to make it effective and operable. Where two constructions might reasonably be given a statute, of which one construction will effectuate the legislative intent and purpose and make the statute operative, whereas the other construction will defeat the intent and purpose and render the statute inoperative, the former construction will be adopted. Based on this rule of construction, TDI's construction providing for the statistical agent to invoice and collect fees controls because it allows Article 21.69 to be effective and operative. Comment: Two commenters assert that the reason no insurers objected to the invoicing and collection of statistical data fees by Acxiom was that TDI's contracts do not provide TDI with the authority to require the companies to pay Acxiom and since the insurers are not a party to the contract, the insurers are not required to pay Acxiom. Agency Response: Staff disagrees that insurers must be named parties to or signatories on TDI's contract with Acxiom. Article 21.69 provides that TDI, not insurers, shall contract with the qualified entity. It is correct that insurers are not signatories to the contract and are not named parties to the contract. The insurers, however, receive numerous benefits under the contracts in the form of data processing services and the insurers are obligated to pay for the services provided by the designated statistical agent under contract with TDI. The insurers were given ample notice and opportunity to comment or object to the contractual terms in several public hearings regarding the contracts. On several occasions, insurers were provided notice of TDI's proposal to require the selected statistical agent to invoice to and collect from companies fees up to the maximum amount. The TDI Requests for Proposal, issued on May 10, 1993, specifically provided that all payments for services performed under the contracts or costs incurred in connection with the contracts would be borne by the insurers, and that the contracted entity must agree to assume all responsibility for billing to, and collection from reporting insurance companies or other entities. Under Docket Numbers 1943, 2002, and 2003 in open meetings and after notice in the Texas Register, TDI selected Acxiom as the contractor for the provision of services. The contracts explicitly provided that Acxiom would invoice to and collect from insurers the amounts authorized under the contracts and reflected in the Fee Schedule. No objections were filed in these dockets regarding the matter of the method of invoicing and collection by Acxiom and no appeal from these decisions has been received by TDI. The time for any such appeal has lapsed in these dockets. The new section is adopted pursuant to the Insurance Code, Article 1.03A, 5. 05, 5.25, 5.98, 17.25, 18.12, 19.08 and 21.69. Article 1.03A authorizes the commissioner of insurance to promulgate and adopt rules and regulation for the conduct and execution of the duties and functions of the department. Article 5. 05(a) requires the commissioner to promulgate statistical plans which shall be used by each insurer in the recording and reporting of loss experience and other necessary data for use in the evaluation of rates and rating systems. Article 5.25 authorizes the commissioner to designate an agent to gather, audit, and compile experience of insurers writing fire and allied lines and provides that the cost thereof shall be borne by such insurers. Article 5.98 authorizes the commissioner to adopt reasonable rules that are appropriate to accomplish the purposes of Chapter 5. Article 17.25, sec.18 authorizes the commissioner to compel written reports from county mutual insurance companies. Article 18.12 requires underwriters of a Lloyds Insurance Company to file with the commissioner on an annual basis such information as the commissioner may demand. Article 19.08 requires reciprocal exchanges to report information required by the commissioner. Article 21.69 authorizes the commissioner to contract with a statistical entity to compile and maintain historical premium and loss data pursuant to statistical plans adopted by the commissioner. sec.5.13000. Fee Schedule. (a) The Commissioner of Insurance adopts the Fee Schedule that is an appendix to this section and to each of the following statistical plans: the Texas Commercial Lines Statistical Plan, the Texas Private Passenger Automobile Statistical Plan and the Texas Residential Property Statistical Plan. The Fee Schedule was developed by Acxiom Corporation and approved by the Texas Department of Insurance. Acxiom Corporation is the contractor selected by the department under the Insurance Code, Article 21.69 to provide collection, maintenance and reporting of the statistical data reported by insurance companies under each of the statistical plans. This document is published by the Texas Department of Insurance and is available from the Technical Analysis Division, Mail Code 104-4A, Texas Department of Insurance, William P. Hobby State Office Building, 333 Guadalupe Street, P.O. Box 149104, Austin, Texas 78714-9104 or Acxiom Corporation, 301 Industrial Boulevard, Conway, Arkansas 72032. (b) The Fee Schedule has been filed with the Office of the Secretary of State and is also printed as an appendix to this section. Figure 1: 28 TAC sec.5.13000(b) Figure 2: 28 TAC sec.5.13000(b) Figure 3: 28 TAC sec.5.13000(b) Figure 4: 28 TAC sec.5.13000(b) Figure 5: 28 TAC sec.5.13000(b) Figure 6: 28 TAC sec.5.13000(b) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 27, 1995. TRD-9501154 D. J. Powers Legal Counsel to the Commissioner Texas Department of Insurance Effective date: February 17, 1995 Proposal publication date: November 21, 1994 For further information, please call: (512) 463-6327 Chapter 23. Prepaid Legal Service 28 TAC sec.23.1, sec.23.3 The Commissioner of Insurance of the Texas Department of Insurance adopts amendments to sec.23.1 concerning definitions and sec.23.3 concerning general provisions for Chapter 23 corporations. The sections are adopted without changes to the proposed text in the November 25, 1994, issue of the Texas Register (19 TexReg 9337). The amendments are necessary to clarify existing rules by implementing legislative changes to the Insurance Code, Articles 1.02, 23.01, and 23.22, enacted in the 73rd Texas Legislature. The adopted sec.23.1(b)(3) clarifies that legal services may be rendered by any attorney licensed to practice law in the jurisdiction in which the legal services are provided by a nonprofit legal services corporation. The adopted amendment to sec.23.3(g) provides for referral of complaints against an attorney providing services through a nonprofit legal services corporation to the appropriate officials in the jurisdiction where the attorney is licensed. In addition, sec.23.3 establishes the effective date of the amendments. Sections 23.1 and 23.3 are also amended to change the references from the "board," which was defined as the State Board of Insurance, to the "department, " which is defined as the Texas Department of Insurance. No comments were received regarding adoption of the amendments. The amendments are adopted under the Insurance Code, Articles 23.01, 23.14, 23.16, 23.19, 23.22, 23.23, 1.02(a), and 1.03A, and the Government Code, sec.2001.004, et seq. The Insurance Code, Article 23.01, expands the definition of "attorney" to include those licensed in the jurisdiction in which the legal services were provided. Article 23.14 authorizes the department to approve the plan of operation and to retain continuing supervision over the plan of operation of nonprofit legal services corporations. Article 23.16 authorizes the department to approve benefit certificates, application forms, and prepaid legal services contracts to be used by nonprofit legal services corporations, and to issue rules concerning the forms. Article 23.19 authorizes the department to regulate participation contracts and agreements with insurers entered into by nonprofit legal services corporations. Article 23.22 authorizes the department to file complaints concerning the performance of attorneys connected with nonprofit legal services corporations. Article 23.23 authorizes the department to promulgate rules necessary to license and control agents of nonprofit legal services corporations. Article 1.02(a) states that all references to the State Board of Insurance in any Texas insurance law mean the Commissioner of Insurance or the Texas Department of Insurance as consistent with their respective powers and duties. Article l.03A provides the commissioner with authorization to adopt rules and regulations for the conduct and execution of the duties and functions by the department. The Government Code, sec.2001.004, et seq. authorizes and requires each state agency to adopt rules of practice setting forth the nature and requirements of available procedures and prescribes the manner for adoption of rules by a state administrative agency. The following are the statutes that are affected by these rules: Rule Number Statute, Article or Code, sec.23.1 Insurance Code, Articles 23.01, 23.26, 5.13- 5.24, 3.01-3.95-15, 1.02, 1.03A, sec.23.3 Insurance Code, Articles 1.02, 1.03A, 1.01, 1.04, 1.08, 1.09, 1.09-1, 1.11-1.25, 1.29, 3.12-3.14, 21.21, 21. 21-2, 21.25, 21.28, 21.28A, 21.47, 1.10, 23.01-23.26. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 27, 1995. TRD-9501153 D. J. Powers Legal Counsel to the Commissioner Texas Department of Insurance Effective date: February 17, 1995 Proposal publication date: November 25, 1994 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 114. Control of Air Pollution From Motor Vehicles 30 TAC sec.114.7 The Texas Natural Resource Conservation Commission (TNRCC) adopts new sec.114.7, concerning Fees for the Inspection/Maintenance (I/M) Program. The new section is adopted without changes to the proposed text as published in the December 9, 1994, issue of the Texas Register (19 TexReg 9717). These fees are applicable in the following ozone nonattainment areas: Houston/Galveston, Beaumont/Port Arthur, Dallas/Fort Worth, and El Paso. The new section establishes the amount of vehicle emission inspection fees and fees for vehicle inspection waivers, and it clarifies specific processing provisions at inspection facilities. The new section establishes revenues to recover I/M program costs obligated in the Vehicle Emissions I/M program. A public hearing was held December 29, 1994. During the comment period, which ended December 29, 1994, testimony was received from the Galveston Houston Association for Smog Prevention (GHASP) in support of the proposal. The new section is adopted under the Texas Clean Air Act (TCAA), Texas Health and Safety Code, sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 11, 1995. TRD-9501096 Kevin McCalla Acting Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: February 16, 1995 Proposal publication date: December 9, 1994 For further information, please call: (512) 239-1966 Title 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 9. Property Tax Administration Subchapter C. Appraisal District Administration 34 TAC sec.9.411 The Comptroller of Public Accounts adopts new sec.9.411, concerning a model pollution control property exemption application, with changes to the text as published in the November 15, 1994, issue of the Texas Register (19 TexReg 8945). The new section is being adopted because Tax Code, sec.11.31, provides an ad valorem tax exemption for property used to control land, water, or air pollution. The new rule sets forth the contents of an application form for a pollution control property tax exemption, requires that appraisal districts either use the model form or a form that complies with the rule in all but language and sequence in which the contents appear, and adopts the model application form by reference. The comments received suggested changing the rule to require that the Texas Natural Resource Conservation commission's use determination for the property be attached to the application form at the time of filing. Some suggested expanding the form's instructions and other elements to ask for more detail concerning the property's use. No comments were received from groups and associations. The Comptroller of Public Accounts disagrees with the suggestion to require the use determination to be filed with the application because the law does not impose that requirement. The comptroller agreed with suggestions to ask for more information about tax abatements and property under construction. In addition, the comptroller agreed with a suggestion to request a description of the property's pollution control method and to provide additional instructions. These changes affected subsections (b) and (d) of the rule. Other recommended changes would have required the property owner to provide information not necessary for appraisal districts to determine if the property owner qualifies, so the comptroller did not make these changes. This new section is adopted under the Tax Code, sec.11.43, which requires the comptroller to prescribe the contents of an application form for each type of exemption. The new section implements the Tax Code, sec.11.31. sec.9.411. Exemption Application for Pollution Control Property. (a) Each appraisal office shall prepare and make available exemption applications for pollution control property. (b) Each application shall contain spaces for the property owner to provide the following information: (1) the name and address of the property owner; (2) the street address or other description of the property on which the pollution control facility, device or equipment is installed; (3) a description of the property's location and a brief description of the facility, device, or method to be exempted; (4) whether the property qualifies for a pollution control property exemption, including the following information: (A) whether the applicant is in the business of manufacturing, producing a product or service that prevents, monitors, or reduces or controls air, water, or land pollution; (B) whether the property is used for residential purposes; (C) whether the property is used for scenic, park, or recreational purposes; (D) whether the property is a motor vehicle; (E) the date the property was acquired; (F) when construction began, was completed, or is expected to be completed; (G) whether the property is subject to a tax abatement agreement, and the date on which the agreement was executed; and (H) whether the property is installed to wholly or partly meet or exceed laws, rules, or regulations designed to control, reduce, monitor, or prevent pollution; (5) a statement of the penalties prescribed by Penal Code, sec.37.10, for making or filing an application containing a false statement; and (6) instructions stating the following: (A) that the property owner need not apply for the exemption annually; (B) that the chief appraiser may require that the property owner reapply for the exemption; and (C) that the applicant has a duty to notify the chief appraiser if eligibility for the exemption ends. (c) Each application shall require the applicant to sign and date the application. (d) Each application shall contain the following: (1) a request that the applicant attach to the application the pollution control use determination for the property, issued by the Texas Natural Resources Conservation Commission or its successor, if the applicant has received the use determination; (2) a requirement that the applicant indicate whether the use determination is attached; (3) a notice to the applicant that the use determination is required by law and must be filed with the chief appraiser; and (4) a statement that if the use determination is not filed with the chief appraiser before the chief appraiser acts on exemptions, the chief appraiser may deny the exemption for lack of conclusive evidence that the property qualifies for the exemption, or disallow the exemption and ask for the use determination or other additional evidence to prove the claim for the exemption. (e) The chief appraiser may duplicate the model form developed by the Comptroller or use a different form that sets out the information listed in subsections (b)-(d) of this section in the same language and sequence as the model form. (f) In special circumstances, the chief appraiser may use a form that provides additional information, deletes information required by this section, or sets out the required information in different language or sequence than that required by this section, if the form has been previously approved by the manager of the Property Tax Division, Comptroller of Public Accounts. (g) Model Form Number 11.31 is adopted by reference. The form developed by the comptroller may be obtained from the Comptroller of Public Accounts, Property Tax Division, P.O. 13528, Austin, Texas, 78711-3528. 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 authority. Issued in Austin, Texas, on January 25, 1995. TRD-9501040 Martin Cherry Chief General Law Comptroller of Public Accounts Effective date: February 15, 1995 Proposal publication date: November 15, 1994 For further information, please call: (512) 463-4028