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 16. ECONOMIC REGULATION Part IV. Texas Department of Licensing and Regulation Chapter 71. Nonagricultural Public Warehouses 16 TAC sec.sec.71.1, 71.10, 71.20-71.22, 71.40, 71.60, 71.70, 71. 80, 71.81, 71.90 The Texas Department of Licensing and Regulation adopts the repeal of sec.sec.71.1, 71.10, 71.20-71.22, 71.40, 71.60, 71.70, 71.80, 71.81, and 71.90 concerning nonagricultural public warehouses without changes to the proposed text as published in the September 15, 1995, issue of the Texas Register (20 TexReg 7254). These sections are being repealed because Senate Bill 237 passed by the 74th Legislature repealed Texas Civil Statutes, Article 9103, Nonagricultural Public Warehouses. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 9103, which provide the Texas Department of Licensing and Regulation with the authority to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purposes of the Act. This agency hereby certifies that the rules as adopted have been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 18, 1995. TRD-9513413 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Effective date: November 8, 1995 Proposal publication date: September 15, 1995 For further information, please call: (512) 463-7357 TITLE 22. EXAMINING BOARDS Part XXIV. Texas Board of Veterinary Medical Examiners Chapter 571. Licensing Examinations 22 TAC sec.571.5 The Texas Board of Veterinary Medical Examiners adopts an amendment to sec.571.5, concerning Certification of Score, without changes to the proposed text as published in the June 27, 1995 issue of the Texas Register (20 TexReg 4617). The adopted amendment removes the reference to the -1.5 standard deviation, since the Professional Examination Services no longer uses this in calculating passing scores on the national examinations. The agency did not receive any written comments concerning the amendments to this rule. The amendment is adopted under Texas Civil Statutes, Article 8890, sec.7(a), which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this 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 authority. Issued in Austin, Texas, on October 17, 1995. TRD-9513437 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 8, 1995 Proposal publication date: June 27, 1995 For further information, please call: (512) 305-7555 License Renewals 22 TAC sec.571.61 The Texas Board of Veterinary Medical Examiners adopts new sec.571.61, concerning Inactive License Status, with changes to the proposed text as published in the June 27, 1995, issue of the Texas Register (20 TexReg 4618). This new rule will allow an inactive status for licensees wishing to maintain a Texas license, but who will not be practicing veterinary medicine in this state. The agency received the following written comment concerning this rule: Comment: Dr. V. W. Koch questioned subsection (e) of the rule concerning the need to place a 10-year limit on inactive licenses. Response: sec.10B(b) of the Veterinary Licensing Act, Article 8890, states: "Rules adopted under this section shall include a time limit for a license to remain on inactive status. " The Board believes ten years is a reasonable period of time to allow a licensee to maintain inactive status. Comment: Steve Holzheauser, DVM, called on the rule with comments on the following sections of the rule: Subsection (b) (1) Should be clarified. As written, the rule implies a licensee on inactive status could not work on any animal, including his own. While the statute clearly allows this, the current language could cause unnecessary confusion. Subsection (b)(2): Disagrees with the approach taken. This provision would deny a licensee from treating and caring for his own animals, something the licensee would be totally capable of doing. One effect is that a licensee who is not actively practicing but intends to treat his or her own animals would loose any incentive to go on inactive status. Further, the inclusion of this provision for enforcement purposes to prevent a licensee from treating animals belonging to others is unnecessary because of other provisions in the rule, specifically provision found in subsection (g) that authorizes penalties of up to $500 per day for violating the rule. Subsection (e): Believes that the provision is unnecessarily complicated. As proposed, the rule would require a licensee on inactive status to go on active status for one year after the tenth year if the person wanted to continue inactive status longer than the maximum ten-year period. Dr. Holzheauser believes that legislative intent would be met if the maximum period were increased substantially or some simpler approach were taken. Response: To address Dr. Holzheauser's concern that an inactive licensee would be prohibited from working on his own animals, subsection (b)(1) was amended to clearly exempt from this rule, owners from working on their own animals. The Board agreed that a licensee in good standing should be allowed to obtain controlled and legend (prescription) drugs for use on the licensees' own animals, and the rule was so modified. Provisions were added to ensure adequate record keeping is maintained. The Board felt a period of ten years was the maximum time a licensee should remain on inactive status without verification of their continuing education. The new section is adopted under Texas Civil Statutes, Article 8890, sec.7(a) , which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this Act. sec.571.61. Inactive License Status. (a) Application. A licensee may request his/her license be placed on inactive status, whether or not he/she is practicing within the state of Texas, provided: (1) his or her current license is active and is in good standing; (2) a request in writing, on the form prescribed by the board, is made for his or her license to be placed on official inactive status; and (3) the request is made during the annual license renewal period between January 1 and February 28. (b) Restrictions. The following restrictions shall apply to licensees whose licenses are on inactive status. (1) Except as provided in the Act, sec.3(a)(1), the licensee may not engage in the practice of veterinary medicine or otherwise provide treatment to any animal in the State of Texas. (2) If the licensee possesses or obtains a DEA and/or Texas Controlled Substances registration for location in Texas, the licensee must comply with Board sec.573.43 and sec.573.50 of this title (relating to Rules of Professional Conduct). Violation of these rules will result in disciplinary action. (c) Return to Active Status. A licensee on inactive status wishing to practice veterinary medicine within the State of Texas must receive written approval from the Board prior to returning to active status. In addition to other information which may be requested or required by the Board, the following conditions apply to licensees applying to return to active status. (1) A veterinarian licensed and practicing in another state or jurisdiction must prove he or she is in good standing in that state or jurisdiction. (2) A licensee on inactive status must pay the total annual renewal fee, less the amount of the inactive annual renewal fee, plus a $25 administrative processing fee to obtain a regular license. The regular annual renewal fee shall not be prorated for applications to return to active status made after the annual renewal period. (d) Continuing Education Requirements. If a licensee on inactive status requesting to return to regular license status has maintained an annual average of 15 hours of continuing education, the licensee will be placed on regular license status without any additional requirements. If the average annual continuing education is less than 15 hours, the licensee must complete 30 hours of continuing education in the 12 months immediately following regular license status. (e) Cancellation of Inactive License. A license maintained on inactive status will be automatically cancelled after ten years. A new license will be issued only upon completion of all requirements for licensure. During the ninth year of inactive status, the Board will notify the inactive licensee that during the following year, his or her license must be on regular status or the license will be cancelled. (f) Annual Renewal Fees: The annual fee for a license on inactive status shall be as set by the Board in sec.577.15 of this title (relating to Fee Schedule). (g) Penalty. A licensee on inactive status found to be actively practicing veterinary medicine in the State of Texas shall be subject to an administrative penalty of $500 per day for each violation. Submission of false or otherwise misleading information or any other misrepresentation contained on any request for inactive status, renewal of inactive status or return to active status shall be a violation of this rule. (h) Reinstatement Directly to Inactive Status. Licensees failing to timely renew their licenses during the 1995 renewal period (January 1, 1995-February 28, 1995), whose licenses have not been cancelled for previous non-renewals, may apply for reinstatement directly to inactive status. 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 October 17, 1995. TRD-9513435 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 8, 1995 Proposal publication date: June 27, 1995 For further information, please call: (512) 305-7555 Chapter 573. Rules of Professional Conduct Supervision of Personnel 22 TAC sec.573.10 The Texas Board of Veterinary Medical Examiners adopts new sec.573.10 to replace the current rule concerning supervision of Non-Licensed Employees, with changes to the proposed text as published in the September 1, 1995, issue of the Texas Register (20 TexReg 6790). The changes are editorial in nature and have no impact on those required to comply with this new rule. The adopted rule defines acceptable levels of supervision and provides licensees with guidelines on what tasks a non-licensed employee may perform. It places sole responsibility for determining the employee qualifications on the employing licensee. The agency received no written comments concerning this new rule. The new section is adopted under Texas Civil Statutes, Article 8890, sec.7(a) , which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this Act. sec.573.10. Supervision of Non-Licensed Employees. (a) General Supervision. Supervision by a responsible veterinarian being readily available to communicate with the person being supervised by the veterinarian. (b) Direct Supervision. The actual physical presence of a responsible veterinarian on the premises. (c) Immediate Supervision. The responsible veterinarian is in audible and visual range of the animal patient and the person treating the animal. (d) Official Health Test/Documents. A licensee must personally sign any official health documents, other than "rabies certificates" issued by said licensee. The issuance of any pre-signed official health documents by a licensee is a violation of this rule. Unless otherwise prohibited by this Act, Board Rule, State or federal law, a licensee may permit an unlicensed employee, under Direct Supervision of the licensee, to collect samples from animals for official test. (e) Employee Qualifications. The veterinarian is the sole judge of the employee's qualifications necessary for the performance of routine treatment. Consequently, the licensee will be held accountable before the Board for the actions and/or potential problems associated with employees acting at his/her directions. (f) Prohibited Services. An unlicensed individual shall not perform the following health care services: surgery; invasive dental procedure; diagnosis and prognosis of animal diseases and/or conditions; or, prescribing drugs and appliances. (g) The Level of Supervision on Non-Licensed Employees. General or Direct supervision as defined by the Act, shall be at the discretion and responsibility of the licensed veterinarian except where such acts of non-licensees are prohibited by the Act or Board Rule. Licensees should consider both the level of training and experience when determining level of supervision and duties of non- licensed employees. When feasible a licensee should delegate greater responsibility to Registered Veterinary Technician (RVT) over non-registered veterinary technicians. RVT's may perform those duties they have been trained to do as set forth by American Veterinary Medical Association (Committee on Veterinary Technician Education and Activities) provided those duties are performed under the direction, supervision and responsibility of a veterinarian licensed by Board, and such duties are not prohibited by Board Rule, State or Federal law, and where employment of the RVT is not an attempt to circumvent the Act or Board Rule. An RVT may suture existing surgical skin incisions and induce anesthesia under the direct or immediate supervision of a veterinarian. These procedures may be performed by a non-registered veterinary technician only under the immediate supervision by a veterinarian. Euthanasia may be performed by a veterinary technician only under the immediate supervision of a veterinarian. (h) Emergency Care; A licensee, in an emergency situation where prompt treatment is essential for the prevention of death or alleviation of extreme suffering, may, after determining the nature of the emergency, and the condition of the animal, issue treatment directions to an unlicensed person by means of telephone or radio communication. The Board can take action against a veterinarian if, in the Board's sole discretion, the veterinarian uses the privilege to circumvent this rule. The veterinarian assumes full responsibility for such treatment. However, nothing in this rule requires a licensee to accept a case under these circumstances. (i) Care of Hospitalized Animals; It is permissible for an unlicensed person, in the absence of direct supervision, to follow the oral or written treatment orders of a licensed veterinarian in the care of hospitalized animals; provided however, that the veterinarian has examined the animal(s) and that a valid veterinarian/client/patient relationship exists. 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 October 17, 1995. TRD-9513434 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 8, 1995 Proposal publication date: September 1, 1995 For further information, please call: (512) 305-7555 Responsibilities to Clients 22 TAC sec.573.23 The Texas Board of Veterinary Medical Examiners adopts new sec.573.23, concerning Board Certified Specialist and Duty of Licensee to Refer a Case, with changes to the proposed as text published in the June 27, 1995, issue of the Texas Register (20 TexReg 4619). The changes are editorial in nature and have no impact on those required to comply with this new rule. This new rule defines a Board Certified Specialist, establishes a higher standard of care to be provided by such specialists, sets out the licensees' responsibilities in referring cases to specialists, and outlines the procedures for investigating complaints involving specialists. The agency received the following comments concerning this new rule. Comment: Dr. Paul Dean feels that the statement "or otherwise more qualified licensee" should be deleted from subsection (c) since "more qualified" is not defined, and the rule is designed to only address board certified specialists. He points out that some non-board certified practitioners perceive themselves to be "more qualified" since they receive referrals based on their experience in a given area of veterinary medicine. He believes that the very act of referring a patient implies a higher standard of care, and if "more qualified licensee" is to be included, then non-board certified licensees should be held to the same standard of care as they board certified specialist. Board Response: The requirement of a referral to a more qualified licensee, even if not board certified, will afford the public and referring veterinarians with a greater range of potential referrals in complex cases. Not all locations have board certified specialists for many situations. Requiring referrals be made to board certified specialists would greatly increase the cost and availability of expert treatment. Referral for treatment by a non-board certified veterinarian with a specialized practice or greater practical skills or experience than the referring veterinarian is likely to benefit the client and patient by requiring referrals by less experienced or capable veterinarians even when a board certified specialist is unavailable. The board believes this new rule appropriately establishes both a higher standard of care for board certified specialists and an independent duty to make referrals in certain circumstances. COMMENT: William D. Liska, DVM, Diplomate, American College of Veterinary Surgeons, proposed that the definition be changed to read "A licensee is a Specialist if he/she is a Board Certified Diplomate of a specialty organization recognized by the (AVMA). Thereafter in the rule, just the term specialist would be used. He also proposes that in subsections (c) and (d) (2) the phrase "... or otherwise more qualified licensee..." be expanded to read ". .. or otherwise more qualified licensee if no Specialists are available in the area.." RESPONSE: Dr. Liska's first suggestion was adopted. The Board did not adopt the suggestion to add the phrase "if no Specialists are available in the area". The Board does not intend to limit referrals only to specialists but to also include other veterinarians who would logically have greater practical skills and experience. The new section is adopted under Texas Civil Statutes, Article 8890, sec.7(a) , which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this Act. sec.573.23. Board Certified Specialists and Duty of Licensee to Refer a Case. (a) Definition. A licensee is a Specialist if he/she is a Board Certified Diplomate of a specialty organization recognized by the American Veterinary Medical Association. (b) Standard of Care for Board Certified Specialist: Board Certified Specialists are held to a higher standard of care than non-specialist licensees, notwithstanding sec.573.22 of this title (relating to Professional Standard of Humane Treatment). (c) Responsibility of Licensee to Refer a Case. A licensee shall have a duty to a client to suggest a referral to a Specialist, or otherwise more qualified licensee, in any case where the care and treatment of the animal is beyond the licensee's capabilities. A licensee's decision on whether to accept or continue care and treatment of an animal, which may require expertise beyond the licensee's capabilities, shall be based on the exercise of sound judgment within the prevailing standard of care for a licensee faced with the same or similar circumstances. (d) Complaint Investigations. (1) Complaints against Board Certified Specialists. Board investigations of complaints alleging substandard care by a Specialist in his/her area of specialty will include consultations with one or more Specialists licensed by the Board practicing the same specialty on the species involved in the complaint. The Board, at its sole discretion, may consult with Specialists from outside of Texas. If the Board determines an informal conference is warranted, both complainant and respondent may, at their own expense, present oral or written commentary by a Specialist practicing the same specialty on the species involved in the complaint. (2) Complaints Regarding Failure to Make Proper Referral. Board investigations of complaints alleging failure to properly make referrals will include evaluation of the training and experience of the licensee, the availability of a specialist or more qualified licensee, the timeliness and adequacy of information provided to the client regarding the possible need for a referral, the requests of the client, and the likelihood that an adverse result could have been prevented by a timely referral. (e) Record-keeping. A licensee should enter the date and substance of any referral recommendations, with reference to the response of the client, and the date and substance of any consultation concerning a case with a specialist or other more qualified veterinarian in the patient's permanent record. 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 October 17, 1995. TRD-9513433 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 8, 1995 Proposal publication date: June 27, 1995 For further information, please call: (512) 305-7555 Other Provisions 22 TAC sec.573.71 The Texas Board of Veterinary Medical Examiners adopts new sec.573.71, concerning Employment by Nonprofit or Municipal Corporations, without changes to the proposed text as published in the August 25, 1995, issue of the Texas Register (20 TexReg 6581). The adopted rule is designed to clarify the Board's authority and licensees' responsibilities when employment involves nonprofit and/or municipal/corporations. This rule is in response to Attorney General Letter Opinion, LO-95-003, which states that sec.22(a) of the Veterinary Licensing Act does not apply to nonprofit and/or municipal corporations. The new rule clarifies the responsibilities of licensees employed by non-profit or municipal corporations that are rendering veterinary services in connection with sheltering, spaying/neutering, or providing other medical care/treatment of animals. It stipulates that licensees employed by these corporations are liable for violations of the Act or rules, as well as acts or omissions of non-licensed employees and volunteers. The agency did not receive any written comments concerning the new section. The new section relates to Attorney General Letter Opinion, LO-95-003, which states sec.22(a) of the Veterinary Licensing Act, Article 8890, does not apply to nonprofit and/or municipal corporations. Section 22(a) of the Act states "No sole proprietorship, partnership, or corporation shall engage in veterinary medicine unless the owner, partners, or shareholders, respectively, are all licensees." The new section is adopted under Texas Civil Statutes, Article 8890, sec.7(a) , which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this 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 authority. Issued in Austin, Texas, on October 17, 1995. TRD-9513432 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 8, 1995 Proposal publication date: August 25, 1995 For further information, please call: (512) 305-7555 Chapter 575. Practice and Procedure 22 TAC sec.575.5 The Texas Board of Veterinary Medical Examiners adopts an amendment to sec.575.5, concerning Conduct and Decorum, without changes to the proposed text as published in the June 27, 1995, issue of the Texas Register (20 TexReg 4621). The amendment formalizes the present practices of the Board. Members of the public must be recognized by the chairman before addressing the Board, placement of audio/video equipment will not be disruptive, and the presiding officer may exclude from a meeting any disruptive person after adequate warning has been given. The agency did not receive any written comments concerning the amendment to this rule. The amendment is adopted under Texas Civil Statutes, Article 8890, sec.7(a), which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this 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 authority. Issued in Austin, Texas, on October 17, 1995. TRD-9513431 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 8, 1995 Proposal publication date: June 7, 1995 For further information, please call: (512) 305-7555 22 TAC sec.575.9 The Texas Board of Veterinary Medical Examiners adopts an amendment to sec.575.9, concerning Docketing and Numbering of Causes, and Service, without changes to the proposed text as published in the June 27, 1995, issue of the Texas Register (20 TexReg 4622). The amendment corrects an accidental omission of words in the rule and updates the statutory cite regarding ex parte communications. Nothing in this amendment is intended to require the Board to docket complaints unless the Board Secretary finds a violation of the Veterinary Licensing Act and/or Rules of Professional Conduct has occurred. The agency did not receive any written comments concerning the amendment to this rule. The amendment is adopted under Texas Civil Statutes, Article 8890, sec.7(a), which provide the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this 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 authority. Issued in Austin, Texas, on October 17, 1995. TRD-9513430 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 8, 1995 Proposal publication date: June 27, 1995 For further information, please call: (512) 305-7555 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part X. Texas Water Development Board Chapter 363. Financial Assistance Programs The Texas Water Development Board (the board) adopts new sec.363.209, Administrative Cost Recovery and amendments to sec.363.2, Definition of Terms and sec.363.202, Definitions without changes to the proposed text as published in the September 1, 1995, issue of the Texas Register (20 TexReg 6802). New sec.363.209 provides for the assessment of charges to SRF applicants by the Board to recover the Board costs of administering the SRF financial assistance program. Amended sec.363.2 adds a definition for "commitment". Amended sec.363.202 adds definitions for "administrative cost recovery fund", "administrative costs" and "SRF program account". It is the intent of the board to offset the new charges to SRF borrowers by reducing the SRF borrowing rates. No comments were received regarding adoption of the amendments and new section. Subchapter A. General Provisions Introductory Provisions 31 TAC sec.363.2 The amendment is adopted under Texas Water Code, sec.6.101 which requires the board to adopt rules that are necessary to carry out the powers and duties of the Board under the Texas Water Code and other laws of the 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 October 19, 1995. TRD-9513529 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: November 10, 1995 Proposal publication date: September 1, 1995 For further information, please call: (512) 463-7981 Subchapter B. State Water Pollution Control Revolving Fund Introductory Provisions 31 TAC sec.363.202, sec.363.209 The amendment and new section are adopted under Texas Water Code sec.6.101 which requires the board to adopt rules that are necessary to carry out the powers and duties of the Board under the Texas Water Code and other laws of the 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 October 19, 1995. TRD-9513530 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: November 10, 1995 Proposal publication date: September 1, 1995 For further information, please call: (512) 463-7981 Chapter 365. Investment Rules The Texas Water Development Board (the board) adopts amendments to sec.sec.365.12, 365.21, and 365.35, concerning investment rules, without changes to the proposed text as published in the September 15, 1995, issue of the Texas Register (20 TexReg 7262). Amendments to sec.365.12 and sec.365.21 add provisions for distribution of the Board's investment policy to potential investors and requires written acknowledgement of the investor's intention to comply with the Board's standards for prudent and ethical investment transactions. Amendment to sec.365. 35 ensures that investment maturities will coincide with the Board's cashflow needs for each particular fund. The rule changes are adopted to reflect procedural and substantive changes made to the Public Funds Investment Act, Chapter 2256 of the Government Code by House Bill 2459 effective September 1, 1995. No comments were received regarding adoption of the amendments. Selection of Authorized Dealers 31 TAC sec.365.12 The amendment is adopted under the authority of the Texas Water Code, sec.6.101 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, and the Texas Government Code, Chapter 2256, which requires each State agency to adopt rules necessary to invest funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 19, 1995. TRD-9513531 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: November 10, 1995 Proposal publication date: September 15, 1995 For further information, please call: (512) 463-7981 Investment Procedures 31 TAC sec.365.21 The amendment is adopted under the authority of the Texas Water Code, sec.6.101 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, and the Texas Government Code, Chapter 2256, which requires each State agency to adopt rules necessary to invest funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 19, 1995. TRD-9513532 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: November 10, 1995 Proposal publication date: September 15, 1995 For further information, please call: (512) 463-7981 Standards for Investments and Reporting of Investments 31 TAC sec.365.35 The amendment is adopted under the authority of the Texas Water Code, sec.6.101 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, and the Texas Government Code, Chapter 2256, which requires each State agency to adopt rules necessary to invest funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 19, 1995. TRD-9513533 Craig D. Pedersen Executive Administratord Texas Water Development Board Effective date: November 10, 1995 Proposal publication date: September 15, 1995 For further information, please call: (512) 463-7981 Chapter 375. State Water Pollution Control Revolving Fund The Texas Water Development Board (board) adopts new sec.375.21 Administrative Cost Recovery and amendment to sec.375.2, concerning Definition of Terms without changes to the proposed text as published in the September 1, 1995, issue of the Texas Register (20 TexReg 6803). New sec.375.21 provides for the assessment of charges to SRF applicants by the Board to recover the Board costs of administering the SRF financial assistance program. Amended sec.375.2 adds definitions for "administrative cost recovery fund", "administrative costs" and "SRF program account". It is the intent of the board to offset the new charges to SRF borrowers by reducing the SRF borrowing rates. No comments were received regarding adoption of the amendment and new section. Introductory Provisions 31 TAC sec.375.2 The amendment is adopted under the authority of Texas Water Code, sec.6.101 and sec.15.605 which requires the board to adopt rules necessary to carry out the powers and duties of the board provided by Texas Water Code, and adopt rules for the State Water Pollution Control Revolving Fund. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 19, 1995. TRD-9513527 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: November 10, 1995 Proposal publication date: September 1, 1995 For further information, please call: (512) 463-7981 Program Requirements 31 TAC sec.375.21 The new section is adopted under the authority of Texas Water Code sec.sec.6. 101 and 15.605, which requires the board to adopt rules necessary to carry out the powers and duties of the board provided by Texas Water Code, and adopt rules for the State Water Pollution Control Revolving Fund. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 19, 1995. TRD-9513528 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: November 10, 1995 Proposal publication date: September 1, 1995 For further information, please call: (512) 463-7981 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 91. Discipline and Control Peace Officers 37 TAC sec.sec.91.81, 91.83, 91.85, 91.87 The Texas Youth Commission (TYC) aodpts new sec.sec.91.81, 91.83, 9l.85, and 9l.87, concerning commissioning, jurisdiction, continuum of force, and firearms management relating to TYC peace officers, with changes to the proposed text as published in the September 15, 1995, issue of the Texas Register (20 TexReg 7267). These new sections set forth procedures for implementing, under TYC authority, the commissioning of TYC apprehension officers as peace officers. The changes to the proposed text consist of limiting the firearms carried to those firearms approved by TYC even when off duty. Additional procedures for officer identification and for tracking evidence seized during a search are added. The justification for the new sections is to provide a more efficient process of apprehending TYC youth on escape The new rules provide procedures for peace officers in performing their jobs as authorized by the 74th Legislature. One comment was received regarding adoption of the new rules. The commenter is a trained peace officer acting as a citizen. The commenter suggested additional procedural safeguards for staff in seizing illegal material during a search and for officer identification. Commenter suggested limiting firearms to those approved by TYC. Response: TYC agrees with commenter and is incorporating the suggested changes. The new rules are adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions, and sec.61.0931, which provides the Texas Youth Commission with authority to commission peace officers. sec.91.81. Peace Officer: Commissioning. (a) Policy. The Texas Youth Commission (TYC) may employ and commission TYC apprehension specialists as peace officers for the purpose of apprehending TYC youth. (b) Rules. (1) Apprehension specialists must be licensed by the Texas Commission on Law Enforcement Officers Standards and Education (TCLEOSE) prior to being commissioned as peace officers. (2) The Executive Director of TYC is responsible for the commissioning of agency peace officers. (3) The agency must report to TCLEOSE the status of its commissioned peace officers as follows: (A) Report employment of TCLEOSE licensees as commissioned peace officers within 30 days of employment. (B) Submit updated licensing information if it has been more than 180 days since the person worked as a commissioned peace officer. (C) Report within 30 days any cessation of employment. (D) Report within 30 days any event that would disqualify the licensee from retaining the license. (4) If the agency employs more than two commissioned peace officers, the agency must: (A) Designate a firearms proficiency officer. (B) Require each peace officer to demonstrate firearms proficiency annually. sec.91.83. Peace Officer: Jurisdiction. (a) Policy. Apprehension specialists will execute arrests and searches only while pursuing the apprehension of a TYC youth. (b) Rules. (1) Jurisdiction. Apprehension specialists have statewide authority to take TYC youth into custody. (2) Arrest. Apprehension specialists will only arrest youth committed to TYC who have had a warrant or Directive to Apprehend issued on them. (3) Cooperative Apprehension. In cooperation with local law enforcement, apprehension specialists may assist local authorities in arrests of other individuals while they are pursuing the apprehension of TYC youth. (4) Search. Premises searches will only be conducted with a valid warrant or with permission from the property owner. (5) Seizures. Any weapons, money, illegal substances, or material obtained in an authorized search will be immediately turned over to local law enforcement for disposition. When items are seized in an authorized search, the apprehension specialists will document the date, time, and place of the search as well as a description of the items seized and who received them. sec.91.85. Peace Officer: Continuum of Force. (a) Policy. Apprehension specialists commissioned as peace officers will use a continuum of force to effect the apprehension of youth. This continuum includes command presence, verbal direction, physical force, intermediate weapons and use of deadly force. When apprehending an escapee, the apprehension specialists should employ the appropriate amount of force necessary to control the situation and address the level of threat. The Texas Youth Commission (TYC) will ensure that apprehension specialists are trained and certified or licensed as appropriate in the use of physical force, intermediate weapons and deadly force. (b) Rules. (1) Command Presence The apprehension specialist will verbally identify himself as being a peace officer. (2) Verbal Direction. When possible, the apprehension specialist will use verbal direction to obtain compliance from escapees. (3) Use of Force. In situations where physical force is required, the apprehension specialist will apply such force in compliance with GOP.67.09, sec.91.59 of this title (relating to Use of Force). (4) Intermediate Weapons. Use of intermediate weapons such as approved chemical agents or ASP batons is justified only after training and in the following situations: (A) When the use of physical force is justified and the use of force under the circumstances would likely result in major physical injury to the apprehension specialist or others. (B) When less severe methods to gain control have been exhausted and are ineffective, untimely, or impractical. (5) Deadly Force. An apprehension specialist commissioned as a peace officer is authorized to employ deadly force whenever it appears to the specialist that under the following circumstances there are no other viable alternatives: (A) The use of deadly force is immediately necessary to protect the apprehension specialist or another person from an unlawful use of force which the apprehension specialist reasonably believes poses an imminent threat of death or serious bodily injury. (B) The use of force is otherwise justified and reasonably appears to be immediately necessary to make an arrest, or prevent an escape following an arrest, of a person whose arrest is authorized for conduct which is reasonably believed to have included the use or attempted use of deadly force or a person who presents a substantial risk of death or serious bodily injury to the apprehension specialist or another if the person's arrest is delayed. (6) Medical Review. Whenever a situation occurs which requires the use of force, the apprehension specialist will ensure that the youth involved is checked by medical personnel. (7) Reporting. When force or deadly force is utilized, the incident will be reported in compliance with GOP.75.03, sec.93.53 of this title (relating to Incident Report). sec.91.87. Peace Officer: Firearms Management. (a) Policy. While on duty, apprehension specialists commissioned as peace officers shall carry or have readily available a firearm issued by the Texas Youth Commission (TYC). Through the assistance of the local law enforcement, TYC will ensure the investigation of any situation during which an apprehension specialist uses deadly force or intentionally or accidentally discharges a firearm. TYC will also conduct an investigation to review whether or not agency policy was complied with in the aforementioned situation. (b) Rules. (1) Firearm Carry. (A) Apprehension specialists are to carry their issued firearm in a concealed manner. (B) Firearms shall not be publicly drawn or exhibited except for maintenance, during training, or with reasonable cause as outlined in GOP.68. 05, sec.91.85 of this title (relating to Continuum of Force). (C) While on duty, apprehension specialists may only carry their agency issued firearm. The possession of a back-up firearm is prohibited. (D) As peace officers, apprehension specialists may carry a TYC issued firearm when off duty. (2) Ammunition. Except for target practice, apprehension specialists will load their agency issued firearm with ammunition approved by TYC. (3) Firearm Discharge. (A) TYC will ensure the investigation of all incidents in which an apprehension specialist discharges a firearm while acting in the capacity of an apprehension specialist, except the discharge of a firearm at an approved range target practice or other organized shooting match. (B) Firing warning shots is prohibited. 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 October 18, 1995. TRD-9513438 Steve Robinson Executive Director Texas Youth Commission Effective date: November 8, 1995 Proposal publication date: September 15, 1995 For further information, please call: (512) 483-5244