PROPOSED 
 RULES 
 
 Before an agency may permanently adopt a new or amended section or repeal an 
existing section, a proposal detailing the action must be published in the  
Texas Register at least 30 days before action is taken. The 30-day time period 
gives interested persons an opportunity to review and make oral or written 
comments on the section. Also, in the case of substantive action, a public 
hearing must be granted if requested by at least 25 persons, a governmental 
subdivision or agency, or an association having at least 25 members. 
  Symbology in proposed amendments. New language added to an existing section is 
indicated by the use of  bold text. [Brackets] indicate deletion of existing 
material within a section. 
 
   
  TITLE 13. CULTURAL RESOURCES 
 Part IV. Texas Antiquities Committee 
  Chapter 41. Practice and Procedure 
  
  13 TAC sec.41.15 
 
  The Texas Antiquities Committee (Committee) proposes a new Memorandum of 
Understanding (MOU) under sec.41.15 of this title (relating to Memoranda of 
Understanding or Agreement), with the Texas Parks and Wildlife Department 
(TPWD). This action is needed to clarify, streamline and more effectively 
provide for the location, protection, and preservation of significant cultural 
resources on State Lands under the control of the TPWD. 
 Dr. James E. Bruseth, Deputy State Historic Preservation Officer, has 
determined that for the first five-year period the rule is in effect there will 
be limited fiscal implications for state government, and no fiscal implications 
for local government, as a result of enforcing or administering the rule. 
 Dr. Bruseth also has determined that for each year of the first five-year 
period the rule is in effect, the public benefit anticipated as a result of 
administering the rule will be more effective cultural resources management 
procedures between the TPWD, Committee, and Texas Historical Commission, thus 
resulting in cost savings for those agencies. It is anticipated that there 
should be limited economic effect on small businesses or persons who are 
required to comply with the rules as proposed, because the MOU is directed at 
inter-agency coordination and not regulation of the private sector. 
 Comments on the proposal may be submitted to Dr. James E. Bruseth, Deputy State 
Historic Preservation Officer, Texas Historical Commission, Department of 
Antiquities Protection, P.O. Box 12276, Austin, Texas 78711. Comments will be 
accepted for 30 days after publication in the Texas Register. 
 The amendment is proposed under the Natural Resources Code, Title 9, Chapter 
191 (revised by Senate Bill 231, 68th Legislature, 1983, and by House Bill 2056, 
70th Legislature, 1987), Section 191.02, which provides the Texas Antiquities 
Committee with authority to promulgate rules and require contract or permit 
conditions to reasonably effect the purposes of Chapter 191. 
 Title 9, Natural Resources Code is affected by this amendment. 
 
 
  sec.41.15. Memoranda of Understanding and Agreement. 
 
  (a) (No change.) 
   
  (b) Primary Considerations and Stipulations. All agreements are subject to 
sec.sec.41.17, 41.20, and 41.21 of this title (relating to Issuance of Permits, 
Archeological Permit Categories, and Application for Archeological Permit). 
Primary considerations in the development of permit specific memoranda shall 
include: the significance of the cultural resource(s); of nature of the impact 
of the project on the cultural resource(s); and fiscally appropriate and cost-
effective means to mitigate the effect of the project on the cultural 
resource(s). The memoranda will stipulate basic information related to the data 
recovery program for each permitted project, including, but not limited to: the 
significance of the area to be excavated; the methods and techniques to be 
employed; the coordination of the excavation with project construction 
schedules; and the estimated budget for all phases of work related to the 
investigation, including artifact analysis and report production. The Committee 
may also require a performance bond to be posted prior to issuance of an 
antiquities permit. Memoranda of Understanding between the Texas Antiquities 
Committee and the Texas Department of Transportation and the Texas Water 
Development Board follow. 
 
  (1)-(2) (No change.) 
   
  <nl>(3) Texas Parks and Wildlife Department (TPWD). 
 
  <nl>(A)  General Provisions. By means of this Memorandum of Understanding 
(MOU), the TPWD is able to provide legal notification of pending development 
projects, and perform construction monitoring, archeological surface 
reconnaissance, and intensive cultural resource surveys (including shovel tests 
and limited mechanical subsurface probings) on all properties owned or 
controlled by TPWD. An Antiquities Permit will be issued for each year that this 
agreement is in effect, with the stipulation that the following guidelines are 
to be observed. Failure to follow the guidelines could result in cancellation of 
the annual permit at the discretion of the Department of Antiquities Protection 
(DAP). The results of the investigations will be evaluated at the end of each 
permit period. New permits will be automatically issued to TPWD by DAP by 
January 15 of each calendar year assuming all conditions of the agreement have 
been met. The MOU may be amended upon the agreement of TPWD and DAP. This MOU 
voids all previously issued blanket permits or memoranda between DAP and TPWD. 
   
  <nl>(B) Conditions and Exceptions for all TPWD lands. 
 
  <nl>(i) <nl> Construction projects in or on lands owned or controlled by TPWD, 
that are more than an acre in size (not counting well pads that may be smaller 
than one acre) and involve new construction techniques (i.e., bulldozing, root 
plowing, disking, construction projects, etc., where similar activities have not 
occurred before), need to be reviewed by DAP prior to development, and 
archeological surveys may be necessary. 
   
  <nl>(ii)<nl> Large scale (over ten acres; total or cumulative effect) disking 
and/or plowing projects or other traditional land use techniques, in areas that 
have been previously disked or plowed (including revegetation and fire line 
projects), need to be reviewed by DAP prior to development, and archeological 
surveys may be deemed necessary. 
   
  <nl>(iii)<nl> New or replacement fence line construction projects do not need 
to be reviewed by DAP if construction involves hand clearing of vegetation, and 
there is no new development of fence line roads or fire breaks that involve 
ground disturbing activities, such as bulldozing. New bulldozing or disking 
related to fence line construction needs to be reviewed by DAP, and 
archeological surveys may be deemed necessary. 
   
  <nl>(iv)<nl> Road grading/maintenance for erosion control, etc., on existing 
roads does not need to be reviewed by DAP, if there are no recorded or known 
archeological sites that the roads pass through, or are close by, and if 
maintenance does not involve widening or lengthening of the existing road. 
However, any new construction along existing roads, such as disking for fire 
lines, mechanical brush clearing, and burning, etc., needs to be reviewed by DAP 
prior to development, and archeological surveys may be deemed necessary. 
   
  <nl>(v)<nl> Prescription burns and hand clearing of any kind does not need to 
be reviewed by DAP, but associated fire line construction that falls under 
clause (ii) of this subparagraph, will need to be reviewed. 
   
  <nl>(vi)<nl> Any areas or projects that have been previously cleared by DAP 
for development do not need to be reviewed by DAP again, as long as any future 
proposed developments are similar to those cleared in the past. As an example, 
any area that was previously cleared by DAP for developments (such as disking) 
does not need to be reviewed again for future disking in that same area. 
However, if the area was cleared for disking but is now going to be bulldozed or 
otherwise deeply excavated, that proposal will need to be reviewed by DAP, and 
archeological investigations may be deemed necessary. 
   
  <nl>(vii)<nl> Any time that archeological deposits or other cultural resources 
(such as historic home sites or ranching facilities, pictographs, etc.) are 
discovered on TPWD lands, they must be reported to DAP and the office of the 
Cultural Resource Administrator of the Public Lands Division, in order to 
maintain a central repository of archeological information. The Public Lands 
Division and the Wildlife Division will report according to the provisions set 
forth in the following sections. 
     
  <nl>(C)  Public Land Division's Responsibilities. 
 
  <nl>(i)<nl> The Public Lands Division (PLD) and its employees must comply with 
the conditions and exceptions in subparagraph (B) of this paragraph. 
   
  <nl>(ii)<nl> TPWD Resource Specialists (RSs) employed by PLD, and any Austin-
based archaeological field investigators or contracted investigators, assigned 
to each proposed archeological clearance project must meet DAP requirements for 
a Principal Investigator as listed in sec.41.5 of this title (relating to 
Definitions). 
   
  <nl>(iii)<nl> Informed in writing by RSs, the Cultural Resource Administrator 
(CRA) is responsible for sending DAP advanced (30-day) written notification of 
proposed development projects that require review under subparagraph (B) of this 
paragraph. The notification letter must include information on the type of 
project development being undertaken, the kind of archeological investigation 
proposed, a project location map plotted on a copy of a USGS 7.5' topographic 
quad map, and the expected dates of the field work. DAP is responsible for 
responding in writing within 30 days of receipt of each review request. If PLD 
does not hear from DAP within that period of time, PLD may proceed with the 
proposed development project in question, without further notice to DAP. Only in 
an emergency situation can a notification be made by phone, with a written 
notification to follow. 
   
  <nl>(iv)<nl> The annual permit authorizes construction monitoring, surface 
reconnaissance, and intensive cultural resource surveys of certain areas and 
projects. If proposed areas of intensive surveys are to be performed by only one 
qualified RS, those surveys should not exceed 200 acres. Intensive surveys 
larger than 200 acres will require project-specific permits. Advanced 
archeological investigations, such as archeological testing or mitigative 
archeological excavations, are not covered under the annual permit, and any such 
investigations deemed necessary by DAP or TPWD will require project-specific 
permits regardless of whether a qualified RS performs the investigations or they 
are contracted out with other professional archeologists. Reconnaissance level 
surveys may exceed 200 acres but such investigations may not be used in place of 
intensive surveys, thus no construction clearance can be issued relative to this 
level of investigation. 
   
  <nl>(v)<nl> All survey level investigations must meet or exceed common 
archeological standards as described in sec.41.20 of this title (relating to 
Archeological Permit Categories) and the Council of Texas Archeologist's 
Guidelines. Limited mechanical (backhoe, etc.) methods can be employed to 
determine if buried cultural deposits exist and to gain geoarcheological 
(geomorphological) data. 
   
  <nl>(vi)<nl> Routed through the CRA, RSs will send a concise interim report to 
DAP notifying it of the findings of the investigations if construction clearance 
is desired. The interim report will contain information on the basic scope of 
work, findings, conclusion, a project map (showing the investigation area and 
any cultural site locations recorded), copies of State Site Survey forms, a 
project development clearance request (when appropriate), and any recommendation 
for further work. When appropriate, DAP will grant clearance when report 
findings have been submitted and approved. 
   
  <nl>(vii)<nl> DAP is responsible for responding in writing to the interim 
report within 30 days of receipt of each report. If PLD does not hear from DAP 
within that period of time, it may proceed with the proposed development project 
in question, without further notice to DAP. 
   
  <nl>(viii)<nl> If a qualified RS identifies no cultural sites located in a 
proposed construction area or anticipates no damage to cultural properties, TPWD 
may proceed with planned improvements once cleared by DAP. When the RS or 
contract archeologist identifies cultural materials that should receive some 
measure of protection, warrant further investigation, or are considered eligible 
for official State Archeological Landmark designation, and adverse impacts to 
the site can be avoided during construction, he/she will clearly mark the site 
so that development will not impact it. If vegetation clearing is necessary on 
the cultural site, it will be done by hand or in a fashion that inflicts no 
damage to the cultural site. Any on-site decisions made by an RS, regarding 
protective measures for a cultural site, will be respected by TPWD employees and 
contractors. Decisions will be based upon the need to conserve cultural sites 
and proceed with construction in a timely manner. 
   
  <nl>(ix)<nl> If the RS, CRA, or DAP believe that further investigations are 
necessary prior to or during a development project, those arrangements must be 
agreed upon and investigations performed before any further site development may 
proceed. 
   
  <nl>(x) <nl> By February 1 of each year, RSs are responsible for providing the 
CRA with a draft annual report for their region which constitutes a concise 
summary of their investigations during the previous year, with supporting 
documents. In case of an RSs vacancy, the regional director for that region will 
be responsible for submitting a draft annual report and supporting documents to 
the CRA. 
   
  <nl>(xi)<nl> The draft annual report of the past year's investigations will be 
compiled and edited by the CRA, who will submit the report to DAP by April 1 of 
the following year. Each project investigation report within the annual report 
will be concise and informative, and include the same levels of data required 
under sec.41.24 of this title (relating to Reports Relating to Archeological 
Permits). 
   
  <nl>(xii) <nl> Copies of State Site Survey forms, field notes, maps, sketches, 
and daily logs will be submitted to DAP along with the draft annual report. 
Where duplicates are impractical, originals may be submitted. 
   
  <nl>(xiii) <nl> Once the draft annual report is approved by DAP, TPWD will 
submit twenty copies of the final annual report to DAP no later than ninety days 
after TPWD has received DAP's approval of the draft annual report. The final 
annual report should be in a format that conforms to sec.41.24(a) of this title, 
(relating to Reports Relating to Archeological Permits). 
   
  <nl>(xiv) <nl> While this MOU is primarily concerned with the proper 
administration of archeological resources, it is understood that TPWD expects 
its RS's to help manage the historic architectural resources on TPWD properties. 
Because of this, each RS should notify the CRA and the Architecture, 
Engineering, and Landscape Architecture Branch of TPWD of proposed or potential 
impacts to historic structures. TPWD is then responsible for notifying the 
Division of Architecture of the Texas Historical Commission. RSs' will not be 
responsible for reporting architectural projects within their annual report. 
   
  <nl>(xv)<nl> All other conditions listed in the permit form remain unaltered 
by these additional guidelines. 
     
  <nl>(D) Wildlife Division's Responsibilities. 
 
  <nl>(i)<nl> The Wildlife Division (WD) and its employees must comply with the 
conditions and exceptions in subparagraph (B) of this paragraph. 
   
  <nl>(ii)<nl> As defined within subparagraph (B) of this paragraph, WD is 
responsible for all notifications related to applicable development projects and 
all requests for reviews should be received by DAP from the administrative 
office of WD in Austin 30 days prior to the proposed start of any such proposed 
development project. If an emergency situation exists, the notification may be 
made by phone, with a written notification to follow. DAP is responsible for 
responding in writing within 30 days of receipt of each review request. If WD 
does not hear from DAP within that period of time, it may proceed with the 
particular proposed development project in question without further notice to 
DAP. 
   
  <nl>(iii) <nl> All project reviews or clearance requests from Wildlife 
Management Area (WMA) staff, or Regional Offices of the WD, should direct their 
requests through the Administrative Office of WD in Austin and not directly to 
DAP. If an emergency situation exists, the notification may be made directly to 
DAP by phone, with a written notification to follow. 
   
  <nl>(iv)<nl> If an area cannot be avoided and DAP determines, or concurs that 
an archeological survey, or other investigation is needed related to a proposed 
development project, WD must have those investigations done by a qualified 
professional archeologist as defined in sec.41.5 of this title (relating to 
Definitions), under a project specific Antiquities Permit. If an RS performs 
investigations for WD, those findings are to be reported in the Public Lands 
annual report. If at such time in the future WD hires its own staff 
archeologist, he or she could perform investigations under an annual permit. 
   
  <nl>(v) <nl> All archeological investigations performed within WMA's must meet 
or exceed common archeological standards as described in sec.41.20 of this title 
(relating to Archeological Permit Categories), and the Council of Texas 
Archeologist's Guidelines. Limited mechanical (backhoe, etc.) methods can be 
employed during a survey level investigation to determine if buried cultural 
deposits exist, and to gain geoarcheological (geomorphological) data. 
   
  <nl>(vi)<nl> All clearance requests and/or report productions standards 
related to WD project specific permit investigations will follow normal permit 
procedures as defined in sec.41.24 of this title (relating to Reports Relating 
to Archeological Permits). 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on February 3, 1995. 
 TRD-9501432 
  Mark H. Denton 
 Staff Archeologist 
 Texas Antiquities Committee 
    Earliest possible date of adoption: March 15, 1995 
 For further information, please call: (512) 463-5711 
         
                       
  TITLE 22. EXAMINING BOARDS 
 Part XXIII. Texas Real Estate Commission 
  Chapter 535. Provisions of the Real Estate License Act 
  
  Mandatory Continuing Education 
 
  22 TAC sec.sec.535.71-535.73 
 
  The Texas Real Estate Commission proposes amendments to  ssec.535.71-535.73, 
concerning mandatory continuing education (MCE) for real estate licensees. The 
amendments are part of a general revision of the commission's rules concerning 
education providers and the courses taken by licensees and applicants for real 
estate licensure. 
 The amendment to sec.535.71 adopts by reference a reporting form, MCE Form 9-3, 
which would be used by a student completing a correspondence course, a course 
offered by interactive computer, or a course offered by another alternative 
delivery method. The amendment also clarifies that independent contractors hired 
by an MCE provider must meet the same standards as those imposed on the MCE 
providers with regard to the person's ability to administer the course with 
honesty, trustworthiness and integrity. A number of nonsubstantive changes are 
proposed to make the sections easier to read and to apply. MCE providers would 
be required to use instructional strategies other than lecture; at least one 
additional instructional strategy would be required for a three hour course, and 
at least three additional strategies would be required for 15 hours of 
instruction. Instructors who are approved by the commission for a course would 
not have to be approved again in order to teach a portion of that course. 
Although providers would continue to be required to furnish students with copies 
of any written materials which are the basis for a significant portion of the 
course, the section would no longer specify that the materials would be for the 
permanent use of the student. Fees charged by a provider for supplies, materials 
or books would have to be itemized in a written statement given to each student. 
Courses offered by alternative delivery methods, such as a course offered by 
interactive computer, could be approved by the commission if the course 
satisfies specific guidelines set out in sec.535.71. Procedures must be in place 
to ensure that the student who completes the work is the student enrolled in the 
course, and a monitored final examination would be required. 
 The amendment to sec.535.72 would require providers to alphabetize the 
reporting form for courses offered by alternative methods, MCE Form 9-3, that 
are submitted to the commission in a single mailing. A class break must be 
provided at least every two hours. Advertising of MCE courses would have to 
include either the specific MCE course number and course title or a statement 
that the course numbers and titles are available from the provider. If the 
course is being hosted by another person or organization, the advertisement or 
promotional material for the course would have to show clearly that the approved 
MCE provider is offering the course. Written advertisements containing a fee for 
a course would have to display all fees for the course in the same place and 
with the same degree of prominence. Providers would be allowed to grant credit 
to instructors for teaching or attending a course once during the term of the 
instructor's current real estate license or during the two-year period preceding 
the filing of an application for late renewal of the license or return to active 
status; this change makes the acceptance of such credit consistent with 
requirements for the acceptance of other MCE credits. 
 The amendment to sec.535.73 would permit commission employees to evaluate the 
effectiveness of a provider's course materials or instructors through surveys of 
students. Commission employees also would be authorized to file written 
complaints against providers if course completion cards or other documents filed 
with the commission indicate reasonable cause to believe a violation has 
occurred. Grounds for disciplinary action against a provider or instructor have 
been broadened to include making a false representation to the commission that a 
person has completed an examination or any other requirement for an MCE course, 
or making a materially false statement to the commission in response to a 
request from the commission for information relating to a complaint against the 
provider or instructor. 
 Don Roose, director of education and licensing, has determined that for the 
first five-year period the sections are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the sections. There is no anticipated impact on local or state 
employment as a result of implementing the sections. 
 Mr. Roose also has determined that for each year of the first five years the 
sections as proposed are in effect the public benefit anticipated as a result of 
enforcing the sections will be enhancement of the quality of education available 
to real estate licensees and applicants for licensure. There will be no effect 
on small businesses. There is no anticipated economic cost to persons who are 
required to comply with the proposed sections. 
 Comments on the proposal may be submitted to Don Roose, Director of Education 
and Licensing, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 
78711-2188. 
 The amendments are proposed under Texas Civil Statutes, Article 6573a, 
sec.5(h), which authorize the Texas Real Estate Commission to make and enforce 
all rules and regulations necessary for the performance of its duties. 
 The proposed amendments do not affect other statutes, articles, or codes. 
 
 
  sec.535.71. Mandatory Continuing Education: Approval of Providers, Courses and 
Instructors. 
 
  (a)-(b) (No change.) 
   
  (c) The commission adopts by reference the following forms published and 
available from the commission, P.O. Box 12188, Austin, Texas 78711-2188: 
 
  (1)-(10)  (No change.) 
   
  (11) MCE Form <nl>9-3<ol> [9-2], <nl>Alternative Instructional Methods 
Reporting Form<ol> [MCE Correspondence Course Reporting Form]; 
   
  (12)-(14) (No change.) 
     
  (d) To be approved as an MCE provider, a person must satisfy the commission as 
to the person's ability to administer with honesty, trustworthiness and 
integrity a course of continuing education in MCE subjects approved by the 
commission. <nl>If the person proposes to employ independent contractors to 
conduct or to administer the courses, any independent contractor named in the 
application must meet this standard as if the independent contractor were the 
applicant. 
   
  (e) To be approved to offer a classroom course for MCE credit, the provider 
must satisfy the commission that the course subject matter is appropriate for a 
continuing education course for real estate licensees and that the information 
provided in the course will be current and accurate. 
 
  (1) A provider applicant <nl>shall<ol> [must] submit an MCE Form 3A-1, MCE 
Course Application, the first time approval is sought to offer an MCE course. 
Once a course has been approved, no further approval is required for another 
approved provider to offer the same course. Prior to advertising or offering the 
course, however, the subsequent provider <nl>shall <ol> [must] complete MCE Form 
3B-1, file the form with the commission and receive written or oral 
acknowledgment from the commission that all necessary documentation has been 
filed. Providers <nl>shall<ol> [must] submit an instructor's manual for each 
proposed course.  <nl>The commission may require a<ol> [A] copy of the 
previously approved instructor's manual <nl>to<ol> [must also] be submitted for 
each previously approved course the provider intends to offer. Subsequent 
providers  <nl>shall<ol> [must] offer the course as originally approved or as 
revised with the approval of the commission and <nl>shall <ol> [must] use all 
materials required in the original or revised course. The commission will 
publish guidelines to aid providers in the development of instructor manuals. 
Each manual must contain the following: 
 
  (A)-(D) (No change.) 
   
  (E)  instructional strategies <nl>in addition to lecture (at least one for a 
three hour course and at least three for 15 hours of instruction) <ol>; 
   
  (F)-(G) (No change.) 
     
  (2) (No change.) 
     
  (f) To be approved as an instructor of any MCE course, a person must satisfy 
the commission as to the person's competency in the subject matter to be taught 
and ability to teach effectively. An instructor applicant <nl>shall<ol> [must] 
submit through the proposed provider an MCE Form 4A-2, MCE Instructor 
Application, the first time approval is sought to teach an MCE course. For 
subsequent approval to teach a different course, an MCE Form 4B-2, MCE 
Instructor Application Supplement, must be submitted. Once an instructor has 
been approved to teach a course, no further approval is required for the 
instructor to teach the same course for another provider, although the 
subsequent provider must complete MCE Form 4B-2 and file the form with the 
commission prior to using the instructor in the course. <nl>An instructor 
previously approved to teach a course may teach another course without 
submitting an additional instructor application if the second course is a 
subpart of the original course. Instructor approvals may be requested by listing 
the instructors' names on page 3 of MCE Form 3A-1, Course Application, or on 
Form 3B-2, Course Application Supplement. 
 
  (1)-(2) (No change.) 
     
  (g)-(l) (No change.) 
   
  (m) Providers must furnish students with copies[, for students' permanent 
use,] of any printed material which is the basis for a significant portion of 
the course. Ample space must be provided on handouts for notetaking or 
completion of any written exercises. <nl>If a provider charges fees for 
supplies, materials, or books needed in course work, the fees must be itemized 
in a written statement provided to each student by the provider. 
   
  (n)-(o) (No change.) 
   
  (p) The commission may approve a provider to offer an MCE course by 
correspondence subject to the following conditions. 
 
  (1) The course must be offered by an accredited college or university <nl>as 
defined in sec.535.61 of this title (relating to Examinations and Acceptance of 
Courses)<ol> which offers correspondence courses, whether credit or noncredit, 
in other disciplines. 
   
  (2)-(5)  (No change.) 
     
  (q) (No change.) 
   
  <nl>(r) The commission may accept courses offered by alternative delivery 
methods subject to the following conditions. 
 
  <nl>(1) Every course accepted under this subsection shall teach to mastery. 
Teaching to mastery means that the course shall, at a minimum: 
 
  <nl>(A) divide the material into major units as approved by the commission; 
   
  <nl>(B) divide each of the major units of content into modules of instruction 
for delivery on a computer or other approved interactive audio or audiovisual 
programs; 
   
  <nl>(C) specify the learning objectives for each module of instruction. The 
learning objectives must be comprehensive enough to ensure that if all the 
objectives are met, the entire content of the course will be mastered; 
   
  <nl>(D)  specify an objective, quantitative criterion for mastery used for 
each learning objective; 
   
  <nl>(E) implement a structured learning method by which each student is able 
to attain each learning objective; 
   
  <nl>(F)  provide a means of diagnostic assessment of each student's 
performance on an ongoing basis during each module of instruction, measuring 
what each student has learned and not learned at regular intervals throughout 
each module of instruction, and specifically assessing the mastery of each 
concept covered in the content material; 
   
  <nl>(G) provide a means of tailoring the instruction to the needs of each 
student as identified in subparagraph (E) of this paragraph. The process of 
tailoring the instruction shall ensure that each student receives adequate 
remediation for specific deficiencies identified by the diagnostic assessment; 
   
  <nl>(H)  continue the appropriate remediation on an individualized basis until 
the student demonstrates achievement of each mastery criterion; and 
   
  <nl>(I)  require that the student demonstrate mastery of all material covered 
by the learning objectives for the module before the module is completed. 
     
  <nl>(2) The commission must approve the method by which each of the above 
elements of mastery is accomplished. 
   
  <nl>(3) The rationale for the education processes implemented with independent 
study must be based on sound instructional strategies which have been 
systematically designed and proven effective through educational research and 
development. The basis and rationale for any proposed instructional approach 
must be specified in the application for approval. The following types of 
programs will not be approved: 
 
  <nl>(A) those which consist primarily of text material presented on a computer 
or other audio or audiovisual programs rather than in printed material; 
   
  <nl>(B) those which primarily consist of questions similar to those on the 
state licensing examination; or 
   
  <nl>(C) those which consist primarily of combinations of the elements in 
subparagraphs (A) and (B) of this paragraph. 
     
  <nl>(4) An approved instructor and/or the school coordinator/director shall 
grade the written course work required of students in independent study courses. 
   
  <nl>(5) Every school offering an approved course under this subsection shall 
offer those courses under an approved instructor or provider who shall: 
 
  <nl>(A) be available to answer students' questions or provide them assistance 
as necessary; 
   
  <nl>(B) satisfy the commission that procedures are in place to ensure that the 
student who completes the work is the student who is enrolled in the course; and 
   
  <nl>(C) certify students as successfully completing an independent study 
course only if the student: 
 
  <nl>(i)<nl> has completed all instructional modules required to demonstrate 
mastery of the material; 
   
  <nl>(ii)<nl> has attended any hours of live instruction and/or testing 
required for a given course; and 
   
  <nl>(iii)<nl> has passed a monitored final examination. 
       
  <nl>(6) For MCE credit for the student, the provider shall file with the 
commission an MCE Form 9-3 completed by the student. 
 
       
  sec.535.72. Mandatory Continuing Education: Presentation of Courses, 
Advertising and Records. 
 
  (a)-(d) (No change.) 
   
  (e) Providers of MCE correspondence course shall furnish each student with an 
<nl>Alternative Instructional Methods Reporting Form<ol> [MCE Correspondence 
Course Reporting Form], MCE Form <nl>9-3 <ol> [9-2], at the time of the final 
examination. Upon completion of the examination the student shall sign MCE Form 
<nl>9-3 <ol> [9-2]. To report successful course completion the provider shall 
file the completed MCE Form <nl>9-3 <ol> [9-2] with the commission. Providers 
may not report correspondence courses on MCE Forms 7-0, 8-2, or 11-3. 
<nl>Providers shall alphabetize all MCE Form 9-3's that are submitted in a 
single mailing. 
   
  (f) A provider shall, prior to commencement of a course, announce that the 
provider will not certify a student for MCE credit unless the student attends 
all sessions of the course, that partial credit will not be given for partial 
attendance, that no makeups or written work will be allowed for MCE credit, that 
the student must determine if the course is timely and appropriate for the 
student's MCE requirement, and that the student should retain the detachable 
portion of MCE Form 7-0 as documentation of attendance. In addition to the 
precourse announcements, the provider is encouraged to require each student to 
sign an enrollment agreement containing the foregoing information prior to the 
start of the course. If the provider has not advertised or otherwise made 
students aware of the provider's refund policy, the enrollment agreement must 
also contain the refund policy. <nl>One hour of credit may be given for 50 clock 
minutes of actual classroom session time. The provider may allow a ten-minute 
break for every 50 minutes of classroom session time, but a break must be given 
at least every two hours, using all accumulated break time.<ol> If the course is 
offered in one continuous session with no meal break and no more than four hours 
of MCE credit is awarded, the provider may verify attendance by use of a course 
completion card, MCE Form 7-0, signed by each student attending all of the 
course. If the course involves a meal break or is presented in more than one 
session, such as a course offered for three hours each day for five days, the 
provider shall verify attendance prior to the beginning of each session, using 
the original course completion roster, MCE Form 8-2, as the enrollment record. A 
provider shall retain attendance records for the period of time required by 
these sections for the retention of provider records. 
   
  (g) (No change.) 
   
  (h) Providers may not present MCE courses in the offices of a real estate 
brokerage firm or real estate franchise organization. All MCE courses must be 
[publicized as] open to enrollment by the general public. Providers may give 
preference in enrollment to persons who need MCE credit to obtain, renew or 
activate a license and may enroll all others on a space available basis. 
   
  (i) Advertising of MCE shall be subject to the following conditions. 
 
  (1) A <nl>provider applicant<ol> [person] may not advertise a specific MCE 
course or represent in advertising that the <nl>applicant <ol> [person] is a 
provider until the <nl>applicant <ol> [person] has received written approval 
from the commission for the providership and at least one course. A <nl>provider 
applicant <ol> [person] may advertise an intention to offer MCE courses if no 
specific course is described and the advertisement clearly indicates that the 
<nl>applicant <ol> [person] has not been approved as a provider. 
   
  (2) (No change.) 
   
  (3) Any advertisement or promotional material used by a provider must indicate 
the MCE provider's name or assumed business name as reflected in the 
commission's records <nl>and <ol>[,] the MCE provider number assigned by the 
commission[, and]. <nl>The advertisement or promotional material also must 
include either <ol> the specific MCE <nl>course numbers and course titles or a 
statement that MCE course numbers and titles are available from the provider<ol> 
[number and course title and the number of MCE credit hours awarded including 
hours awarded for legal topics]. <nl>When a provider offers a course that is 
hosted by another person or organization, the advertisement or promotional 
material must show clearly that the approved MCE provider is offering the 
course. <ol> [For the purposes of this section, the following statement is 
acceptable to the commission and should be used: "This course has been approved 
by the Texas Real Estate Commission for (insert number of MCE hours) hours of 
Mandatory Continuing Education credit, (insert number of hours) hours of which 
are in legal topics."] 
   
  [(4) A provider may not advertise a course to be conducted after the period of 
time for which the provider has been approved to offer courses.] 
   
  <nl>(4)<ol>[(5)] A provider may not publish advertisements which are 
misleading or which are likely to deceive the public. 
   
  <nl>(5)<ol>[(6)] Any name a provider uses in advertising must not be 
deceptively similar to the name of any other approved MCE provider or school 
accredited by the commission or falsely imply a governmental relationship. 
   
  <nl>(6)<ol>[(7)] <nl>Any written advertisement which contains a fee charged by 
the provider shall display all fees for the course in the same place in the 
advertisement and with the same degree of prominence. <ol> If a provider 
requires students to purchase course materials which are not included in the 
tuition, any such fees must appear in the advertisement of the course. 
     
  (j)-(o) (No change.) 
   
  (p) Providers may request MCE credit be given to instructors of MCE courses 
subject to the following guidelines. 
 
  (1)-(2) (No change.) 
   
  (3) MCE credit may be granted only once for <nl>teaching or attending the same 
<ol> [each] course <nl>during the term of the current license or during the two 
year period preceding the filing of an application for late renewal or return to 
active status. 
 
       
  sec.535.73. Compliance and Enforcement. 
 
  (a)-(b) (No change.) 
   
  (c) Commission employees may conduct on-site audits of any course offered by 
an approved MCE provider. Audits shall be conducted without prior notice to the 
MCE provider, and commission employees may enroll and attend an MCE course 
without identifying themselves as employees of the commission. <nl>Commission 
employees also may evaluate the effectiveness of course materials or instructors 
through surveys of students.<ol> An audit report indicating noncompliance with 
these sections <nl>will<ol> [shall] be treated as a written complaint against 
the provider or instructor concerned and <nl>will<ol> [shall] be referred to the 
enforcement division for appropriate resolution. <nl>Commission employees may 
file written complaints against providers or instructors if course completion 
cards or other documents filed with the commission provide reasonable cause to 
believe a violation of these sections has occurred. 
   
  (d) The commission may reprimand, suspend or revoke the authority of a 
provider to offer MCE courses or suspend or revoke the approval of an instructor 
to teach MCE courses when it has been determined that the provider or instructor 
has been guilty of: 
 
  (1) (No change.) 
   
  (2) making a false representation to the commission, either intentionally or 
negligently, that a person had attended a course or portion of a course for 
which MCE credit was awarded <nl>, that a person had completed an examination, 
or that the person had completed any other requirement for an MCE course<ol>; 
   
  (3) aiding or abetting a person to circumvent the requirements for attendance 
established by these sections<nl>, the completion of any examination or any 
other requirement for completion of an MCE course<ol>; 
   
  (4)-(5) (No change.) 
   
  <nl>(6) making a materially false statement to the commission in response to a 
request from the commission for information relating to a complaint against the 
provider or instructor. 
     
  (e) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on February 6, 1995. 
 TRD-9501612 
  Mark A. Moseley 
 General Counsel 
 Texas Real Estate Commission 
    Earliest possible date of adoption: March 17, 1995 
 For further information, please call: (512) 465-3900 
         
             
  Licensed Real Estate Inspectors 
 
  22 TAC sec.535.228 
 
  The Texas Real Estate Commission proposes new sec.535.228, concerning standard 
inspection report form. The new section would adopt by reference Standard 
Inspection Report Form 1 and provide guidelines for its use. The form provides a 
means by which an inspector licensed by the Texas Real Estate Commission would 
report whether the various parts, components and systems in a property have or 
have not been inspected, whether they are in need of repair or are not 
functioning and whether the inspector has any comments about a part, component, 
or system. An inspector would not be required to use Standard Report Form 1 if a 
federal agency or a client who bought or sold properties in the due course of 
the client's business requires a different form to be used, or if the inspector 
uses a different form which complies with specific guidelines established by the 
section. Generally, a different form would have to address the same parts, 
components, and systems set out in Standard Report Form 1, arranged in the same 
order, and would have to contain verbatim  provisions of Texas Real Estate 
Commission rules relating to the scope of an inspection and departure from the 
inspection standards governing inspections performed by licensed inspectors. The 
guidelines permit a licensed inspector to attach additional pages to provide a 
client with additional information, address the inspection of optional systems 
the inspector would not be required to perform under the commission's inspection 
standards, to contract with the client, or to serve such other purpose as is not 
prohibited by law. The section expressly provides that it is to be construed to 
permit the unimpeded flow of information from the inspector to the client. 
 The proposed inspection form and its guidelines were developed by the Texas 
Real Estate Inspector Committee, an advisory committee of nine inspectors 
appointed by the Texas Real Estate Commission. Adoption of the section is 
proposed to standardize the reports used by Texas-licensed real estate 
inspectors, to ensure that licensed inspectors comply with the inspection 
standards adopted by the commission, and to eliminate confusion and 
misunderstanding in real estate transactions relating to the content of 
inspection reports. 
 Mark A. Moseley, general counsel, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section. There 
is no anticipated impact on local or state employment as a result of 
implementing the section. 
 Mr. Moseley also has determined that for each year of the first five years the 
section as proposed is in effect the public benefit anticipated as a result of 
enforcing the section will be the elimination of confusion and misunderstanding 
about the contents of real estate inspection reports. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the proposed section, other than the cost of a supply of 
the standard inspection report form for those inspectors who do not choose to 
develop their own forms; for volume reproduction, slick proofs of the standard 
inspection report form would be available from the Texas Real Estate Commission 
at nominal cost. 
 Comments on the proposal may be submitted to Mark A. Moseley, General Counsel, 
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188. 
 The new section is proposed under Texas Civil Statutes, Article 6573a, 
sec.5(h), which authorize the Texas Real Estate Commission to make and enforce 
all rules and regulations necessary for the performance of its duties. 
 The proposed new section does not affect other statutes, articles or codes. 
 
 
  sec.535.228. Standard Report Form. 
 
  (a) The Texas Real Estate Commission adopts by reference Standard Report Form 
1, approved by the Texas Real Estate Commission in 1995. This form is published 
by and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, 
Texas 78711-2188. 
   
  (b) Except as provided in this subsection, inspectors licensed by the Texas 
Real Estate Commission shall use Standard Report Form 1 when preparing a written 
report of an inspection. Inspectors may report an inspection using a different 
form of report in either of the following instances. 
 
  (1)  Use of a different form of report is required by an agency of the federal 
government or by a client who buys or sells properties in the due course of the 
client's business. 
   
  (2) The inspector uses a form of report of the inspector's own choice which 
complies with all of the following conditions. 
 
  (A) The report used by the inspector is printed in no smaller than eight point 
type, on letter sized, 8 1/2 inch by 11 inch paper. The inspector may, however, 
select the typefaces, fonts, borders, lines or boxes best suited to the 
inspector's reporting method. 
   
  (B) The first page of the report used by the inspector contains verbatim the 
provisions of Standard Report Form 1 relating to the scope of the inspection and 
departure from the standards of practice. 
   
  (C) The report used by the inspector addresses all of the parts, components, 
and systems contained in Standard Report Form 1 and found in the property being 
inspected, listed in the same order with the same notations indicating whether 
the parts, components, and systems were inspected and in need of repair. If the 
inspector provides a higher level of inspection service than that required by 
sec.535.222 of this title (relating to Standards of Practice), the inspector may 
add additional items, lines or comments. The inspector may delete from the 
report a part, component, or system contained in Standard Report Form 1 if the 
part, component or system is not present in the property. 
       
  (c) An inspector may attach additional pages to Standard Report Form 1 to 
provide the client with additional information, to report inspections of 
optional systems which the inspector is not required to inspect under 
sec.535.222, to contract with the client, or to serve such other purpose as is 
not prohibited by law. This provision is intended to permit the unimpeded flow 
of information from the inspector to the client and shall be liberally construed 
to achieve that intent. 
   
  (d) The first page of any report must contain the name and license number of 
the inspector performing the inspection, and, if the inspection was performed by 
an apprentice real estate inspector, the apprentice and the sponsoring 
professional inspector or real estate inspector who directly supervised the 
inspection must sign the report as required by sec.535.226 of this title 
(relating to Sponsorship of Apprentice Inspectors and Real Estate Inspectors). 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on February 6, 1995. 
 TRD-9501611 
  Mark A. Moseley 
 General Counsel 
 Texas Real Estate Commission 
    Earliest possible date of adoption: March 17, 1995 
 For further information, please call: (512) 465-3900 
         
                   
  Title 34. PUBLIC FINANCE 
 Part I. Comptroller of Public Accounts 
  Chapter 3. Tax Administration 
  
  Subchapter O. State Sales and Use Tax 
 
  34 TAC sec.3.319 
 
  The Comptroller of Public Accounts proposes an amendment to sec.3.319, 
concerning prior contracts. One amendment in subsection (a)(2) deletes the 
requirement that both parties sign the contract. The second amendment in 
subsection (b)(1) excludes two-party contracts from the prior contract exemption 
when the exemption is enacted under enabling legislation that allows the 
exemption when the items are used for or in the performance of a contract. The 
comptroller is required to make this change in order to comply with the Texas 
Supreme Court decision in Calvert v. British-American Oil Producing Company, 397 
S.W.2d 839. This position applies retroactively to ensure continuity in the 
comptroller's application of this decision. The third amendment in subsection 
(c)(4) allows the prior contract exemption for contracts with "open price 
terms." The fourth amendment is to subsection (d). The sentence stating that 
notice of prior contracts or bids should not be sent to the comptroller has been 
modified to state that notice of prior contracts should be sent to the 
comptroller. 
 Mike Reissig, chief revenue estimator, has determined that for each year of the 
first five-year period the section is in effect there will be no significant 
fiscal impact on the state or units of local government as a result of enforcing 
or administering the section. 
 Mr. Reissig also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section would be in providing new information regarding tax responsibilities. 
This section is adopted under the Tax Code, Title 2, and does not require a 
statement of fiscal implications for small businesses. There is no anticipated 
significant economic cost to persons who are required to comply with the 
proposed section. 
 Comments on the proposal may be submitted to Burrell Lankford, Supervisor, Tax 
Administration Division, P.O. Box 13528, Austin, Texas 78711. 
 This amendment is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
 The amendment implements the Tax Code, sec.151.0101 and sec.151.051. 
 
 
  sec.3.319. Prior Contracts. 
 
  (a) Definitions. The following words and terms, when used in this section, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) Bid-A written offer by a seller directed to a specific person making a 
binding commitment to perform a contract for specified work and labor or for 
supplying specified taxable items at a specified price. A general statement by a 
seller listing current prices is not a written bid. 
   
  (2) Contract-A written agreement between two persons [and signed by both 
parties to the agreement] binding one party to perform specified work and labor 
or to supply specified taxable items to another party at a specified price. A 
purchase order issued by a purchaser may qualify as a contract only if signed 
and dated by the seller. 
   
  <nl>(3) Enabling legislation-A bill passed into law by the Texas Legislature 
that authorizes an exemption for prior contracts or bids. 
   
  <nl>(4)<ol>[(3)] Prior contract or bid-A bid offered or a contract signed 
before any change in the tax rate or tax base. A purchase order issued by the 
purchaser prior to <nl>a<ol> [the] rate change is not a prior contract unless 
signed and/or fulfilled by the seller prior to the rate change. 
   
  <nl>(5) Third-party contract-A contract between the purchaser of the items for 
which exemption is claimed and a party other than the seller of the items for 
which exemption is claimed. 
     
  (b) Exemptions. 
 
  <nl>(1) Tax rate increase. Taxable items purchased, leased, or rented for use 
in the performance of a third-party contract or bid signed on or before the date 
provided for prior contracts in the enabling legislation are exempted from the 
amount of the increase in the tax rate. 
   
  <nl>(2)  Tax base increase. <ol> Taxable items purchased <nl>, leased,<ol> or 
rented <nl>that are the subject of a contract or bid signed on or before the 
date provided for prior contracts in the enabling legislation<ol> [for use in or 
sold pursuant to the performance of prior contracts or bids] are exempted from 
[the amount of the increase or]  <nl>a<ol> change in the tax base. 
     
  (c)  <nl>Exceptions<ol> [Exception]. 
 
  <nl>(1) Cancellation clauses. <ol> A cancellation clause in a contract will 
not cause the loss of a prior contract exemption. [However, a contract may not 
qualify for a prior contract exemption in the following situations.] 
   
  <nl>(2)<ol>[(1)]  <nl>Change orders.<ol> Change orders <nl>that<ol> [which] 
constitute additions to the contract or increases in coverage or taxable items, 
labor or services added to the contract are not included in the prior contract 
exemption. The original part of the contract may still retain its prior contract 
exemption if the change orders can be separately identified. 
   
  <nl>(3)<ol>[(2)] <nl>Renewals or extensions.<ol> Any renewal or exercise of an 
option to extend the terms (either by action of either party to the contract or 
automatically) [or renegotiation of terms, or price changes] will be considered 
a new contract. 
   
  <nl>(4) Price changes. A contract will not lose the prior contract exemption 
solely due to a change in price if: 
 
  <nl>(A) the parties intend that the contract shall remain binding regardless 
of the change in price; and 
   
  <nl>(B) the contract does not expressly provide that changes in price 
terminate the contract. 
     
  <nl>(5)<ol>[(3)] <nl>Tax pass-through clauses.<ol> Any contract whose terms 
state the customer will be liable for any tax rate increases or for the 
applicable tax rate will not qualify for the prior contract exemption, even 
though the contract was in effect prior to the tax rate change. Such phrases are 
intended to transfer the burden of the tax increase from the seller to the 
customer and violate the statutory qualifications for exemption. Note: this 
paragraph applies only to tax rate increases and not to new services added to 
the tax base. 
   
  <nl>(6)<ol>[(4)]  <nl>Fixed-price/as-needed terms.<ol> Contracts <nl>that <ol> 
[which] contain a fixed price <nl>that<ol> [which] must be paid whether or not 
the service is performed, and specify the work to be performed by type and 
quantity, and contracts <nl>that <ol> [which] state that "services or taxable 
items will be supplied as needed or upon request" will qualify as prior 
contracts if they otherwise meet the requirements of this section. 
   
  <nl>(7)<ol>[(5)] <nl>Bids vs. contracts.<ol> A bid submitted prior to <nl>a 
change<ol> [changes] in the tax rate or base and a contract signed <nl>after the 
change<ol> pursuant to that bid [after the change,] will qualify for the prior 
contract exemption if the terms of the contract are substantially similar to the 
original bid. 
   
  <nl>(8)<ol>[(6)]  <nl>Transfer of contracts.<ol> With the exception of 
contracts <nl>that<ol> [which] may be substantially changed or modified, a 
contract  <nl>that<ol> [which] is transferred by either party will retain its 
prior contract exemption so long as the transferee is bound by the original 
terms of the contract. 
     
  (d) (No change.) 
   
  (e) Prior contracts/limitations. This section applies only when <nl>there is 
enabling legislation<ol> [the statute enacting the change in the tax rate or tax 
base provides for prior contract exemptions]. The effective date and statute of 
limitations date on prior contracts will also be governed by the <nl>enabling 
legislation <ol> [enacting statute]. 
   
  (f)  Identification number. An identification number is required on prior 
contract exemption certificates furnished to sellers. The identification number 
should be the person's sales or use tax permit number, if the person issuing the 
certificate is required to hold a permit under the terms of the Tax Code. If a 
permit is not required, the person's federal employer's identification (FEI) 
number or social security number may be used. A suggested form for the exemption 
certificate is a part of <nl>this<ol> [the] section. 
     
  <ol>Figure: 34 TAC 3.319(f) 
 
  [(g) Other contracts. This section also applies to contracts for sales, 
rentals, leases, and the performance of taxable services.] 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on February 6, 1995. 
 TRD-9501545 
  Martin Cherry 
 Chief, General Law 
 Comptroller of Public Accounts 
    Earliest possible date of adoption: March 17, 1995 
 For further information, please call: (512) 463-4028