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 II. Public Utility Commission of Texas Chapter 23. Substantive Rules Records and Reports 16 TAC sec.23.11 The Public Utility Commission of Texas adopts an amendment to sec.23.11, with changes to the proposed text as published in the September 22, 1995, issue of the Texas Register (20 TexReg 7569). Section 1.407(b) of the Public Utility Regulatory Act of 1995 (PURA 1995), Texas Civil Statutes, Article 1446c-O (Vernon Supplement 1995), requires the commission to require each utility subject to regulation under the Act to prepare and submit to the commission a comprehensive annual report detailing its use of historically underutilized businesses (HUBs). The amendment adopted to sec.23.11 requires the submission of a simplified report on March 31, 1996, and a more detailed report on December 30 of 1996 and each subsequent year. Small utilities will use one form, and other utilities another. The report may be submitted on paper only, or on paper and on computer diskette. An optional form is available to use for reporting indirect purchases, such as from sub-contractors. Comments were received, and a public hearing was held on November 10, 1995. Comments and the proceedings regarding Project Number 14754, the corresponding form, were also considered in revising this rule. Commenters included Texas Utilities Electric Company (TUEC), Houston Lighting and Power Company (HL&P), Texas Association of Mexican American Chambers of Commerce (TAMACC), Texas Telephone Association (TTA), Association of Texas Electric Cooperatives (TEC), Southwestern Bell (SWB), GTE Southwest and Contel (GTE), Morris Fountain, and the Texas Association of HUBs (TUH). No one commented that a rule need be adopted. The commission has amended the section to eliminate the explicit definition of HUB classes, because it either unnecessarily duplicates the definitions required by the statute or sets up an undesirable conflict with that definition. TUEC and HL&P commented that reporting total contracts for each class of HUBs might lead to inter-class conflict or the explicit or implicit imposition of quotas. They also commented that utilities would prefer to draw their outside contractors from their service areas, or at least from Texas; TEC added that cooperatives, because of their nature, strongly preferred to do business with firms in their service areas. The commission believes that these concerns are not properly addressed in this rulemaking. TEC and TTA commented that the burden of preparing the reports would be far greater, proportionately to their available resources, on small utilities than on large. Since the public hearing, further discussions among several commenters (including TAMACC, TUH, TTA, SWB, and GTE) produced a consensus on reduced reporting requirements for small local exchange companies and electric utility cooperatives. The commission adopts rule provisions and approves forms incorporating that consensus. TUEC, HL&P, SWB, and GTE commented that to capture the data in the categories called for by the form would require a substantial change in the companies' recordkeeping, which could not be done at a reasonable cost for calendar year 1995 transactions, and could be done only with great difficulty for calendar year 1996. SWB and GTE later concurred in the rule provisions and forms which the commission adopts. The commission rejects the proposal that certain utilities not be required to make a detailed comprehensive report before the year 1997. TUH suggested that the report to be submitted March 31, 1996, state data for procurement from women-owned and all-minority-owned businesses, and a comparison of that total with total expenditures. The commission amends the section to adopt that suggestion. It was suggested that form-based reports could be submitted in electronic format, which would significantly ease the commission's burden in assembling and analyzing the data in a timely manner. No commenter disapproved of the suggestion. The commission amends the section to provide that form-based reports filed in hard copy may also be filed on diskette. TU and HI commented that to require filing of every document regarding usage of HUBs would be very onerous, and might present unmanageable confidentiality problems. They also commented that much of their activity encouraging HUBs would not be adequately captured by the proposed form. In addition, TUEC and GTE commented that much of the business they do with HUBs and small businesses is done through spot purchases, not contracts, so that reporting only contracts would understate its usage of HUBs. The commission amends the section to eliminate the requirement that every document relating to usage of HUBs be filed. The commission amends the section to permit a utility to file whatever additional documents it believes appropriate to convey an adequate picture of their efforts. In addition, utilities may use a supplemental report for indirect procurement data. All comments submitted, including those not specifically referenced herein, were fully considered by the commission. The amendment is adopted under Texas Civil Statutes, the Public Utility Regulatory Act of 1995, Senate Bill 319, 74th Legislature, Regular Session 1995, to conform to Texas Civil Statutes, sec.1.407(b), the Public Utility Regulatory Act of 1995 as amended by House Bill 2128, sec.6, 74th Legislature, Regular Session 1995, which requires that the commission require jurisdictional utilities to report usage of HUBs. Cross index to statute, article, or code: Public Utility Regulatory Act of 1995, House Bill 2128, 74th Legislature, Regular Session 1995. sec.23.11. General Reports. (a)-(i) (No change.) (j) Equal opportunity reports. (1) The term "minority group members," when used within this subsection, shall have the following meaning. (A) African-Americans; (B) American-Indians; (C) Asian-Americans; (D) Hispanic-Americans and other Americans of Hispanic origin; and (E) women. (2) Each utility that files any forms with local, state or federal governmental agencies relating to equal employment opportunities for minority group members, (e.g., EEOC Form EEO-1, FCC Form 395, RUS Form 268, etc.) shall file copies of those same completed forms with the commission, and submit copies of any other forms required to be filed which contain the same or similar information such as that addressing personnel data identifying numbers and occupations of minority group members employed by the utility, and employment goals relating thereto, if any. (3) Any additional information relating to the matters described in this subsection may be submitted at the utility's option. (4) On February 1 of each year, the commission shall submit a report summarizing the filed reports to the Texas legislature. (k) Annual report on historically underutilized businesses. (1) In this subsection, "historically underutilized business" has the same meaning as in sec.481.101, Texas Government Code, as it may be amended. (2) Every utility shall report its use of historically underutilized businesses (HUBs) to the commission on a form approved by the commission. A utility may submit the report on paper, or on paper and on a diskette (in Lotus 1-2-3 [*.wk*] or Microsoft Excel [*.xl*] format). (A) Each utility shall on or before March 31, 1996, submit to the commission a comprehensive annual report detailing its use of HUBs for October 1, 1994- September 30, 1995, on the Initial HUB Use Report form. (B) Each Small Local Exchange Company and each electric and telephone cooperative utility shall on or before December 30, 1996, and December 30 of each year thereafter submit to the commission a comprehensive annual report detailing its use of HUBs for the four quarters ending on September 30 of the year the report is filed, on the Small Utilities HUB Report form. (C) Every utility other than those specified in subparagraph (B) of this paragraph shall on or before December 30, 1996, and December 30 of each year thereafter submit to the commission a comprehensive annual report detailing its use of HUBs for the four quarters ending on September 30 of the year the report is filed, on the Large Utilities HUB Report form. (D) Each utility wishing to report indirect HUB procurements may use the Supplemental HUB report form. (E) Each utility shall also file any other documents it believes appropriate to convey an accurate impression of its use of HUBs. (3) This subsection may not be used to discriminate against any citizen on the basis of sex, race, color, creed, or national origin. (4) This subsection does not create a new cause of action, either public or private. (l) Special and additional reports. Each utility, including municipally owned utilities, shall report on forms prescribed by the commission special and additional information as requested which relates to the operation of the business of the utility. (m) Service quality reports. Service quality reports shall be submitted quarterly on a form prescribed by the commission. (n) Research and development reports. Research and development reports shall be submitted annually on a form prescribed by the commission. (o) Report amendments. Corrections of reports resulting from new information or errors shall be filed on a form prescribed by the commission. (p) Annual earnings report. Each utility shall report its annual earnings on forms prescribed by the commission as set out sec.23.12 of this title (relating to Financial Records and Reports). (q) Penalty for refusal to file on time. In addition to penalties prescribed by law, the commission may disallow for rate making purposes the costs related to the activities for which information was requested and not timely filed. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 16, 1996. TRD-9600582 Paula Mueller Secretary of the Commission Public Utility Commission of Texas Effective date: February 6, 1996 Proposal publication date: September 22, 1995 For further information, please call: (512) 458-0100 TITLE 19. EDUCATION Part II. Texas Education Agency Chapter 61. School Districts Subchapter CC. Commissioner's Rules Concerning School Facilities 19 TAC sec.61.1031 The Texas Education Agency (TEA) adopts new sec.61.1031, concerning the school facility assistance program, with changes to the proposed text as published in the October 20, 1995, issue of the Texas Register (20 TexReg 8555). The program grants state funds to eligible school districts for school facility improvements. The section establishes requirements of the program, including school district eligibility, the application process, the payment schedule, and required reports. The new section is necessary to provide uniform criteria for administering the assistance program. The following changes to the new section were introduced after the section was proposed. In sec.61.1031(b)(2), the amount "$0.20" was reformatted as "$. 20" to comply with Texas Register style requirements. In response to public comments, language was added to sec.61.1031(b)(3) to modify the method applied in determining the total tax rate of $1.20 and a debt service rate of $.20. The following comments were received regarding adoption of the new section. Comment. Copperas Cove ISD raised a concern that the tax effort measurement established in sec.61.1031 for program eligibility under the School Facility Assistance Program does not consider other factors that have a bearing on the rate adoption of Copperas Cove ISD. Copperas Cove ISD has pointed out that its total tax rate and the debt service tax rate are both below the required rates of $1.30 and $.20, respectively, for a school district to be eligible for school facilities assistance because of the strategy adopted by the school board to meet the maintenance of effort requirements that would make Copperas Cove ISD eligible for federal impact aid. Agency Response. The agency agreed to make changes to sec.61.1031(b)(3). Comment. Elkhart ISD, which used fund balance to make debt service payments in 1994-1995, asked that fund balance amount be treated as tax collections for purposes of calculating the tax rate necessary to qualify for the program. Agency Response. It is believed that the use of fund balance, while a legitimate option for school districts in making a debt service payment, does not constitute tax effort in the manner intended by the legislature as a prerequisite for this program. In the specific situation of Elkhart ISD, the amount of debt service payment in 1994-1995 divided by the 1993 property values certified by the comptroller would not equal the necessary $.20 rate. Comment. Valley View ISD indicated that consideration should be given to the total amount of debt service payment made by the district in the determination of debt service tax effort. The district has used predominantly guaranteed yield state aid in making its debt service payments but has adopted a minimal debt service tax rate. Agency Response. It is believed that the legislative intent with regard to qualifying debt service tax effort requires that the debt service rate be sufficient to generate in state aid the remainder of the funds necessary to service the debt of the district and that the combined amount be the equivalent of a $.20 rate applied to the 1993 taxable value determined by the comptroller. In the specific case of Valley View ISD, the actual debt service collections do not generate sufficient state aid to reach the $.20 threshold. Section 61.1031 has been modified to clarify this distinction. Comment. Etoile ISD has a number of types of indebtedness that do not constitute bonded debt. These include short term financing for maintenance and operations, lease/purchase of equipment, and financing for school bus purchases. The district asserts that these costs constitute debt service and should qualify the district for participation in the program. Agency Response. The wording of the statute seems unambiguous in requiring that a district have "an effective tax rate for the payment of principal and interest on bonds that is at least $.20" in order to be eligible. Since the cited financial arrangements do not involve bonded debt, the district should not qualify on the basis of these costs. Comment. Lyford ISD, Jourdanton ISD, and San Diego ISD asked that tax effort be calculated based on 1994 property values. The districts have experienced significant declines in value, which would produce an effective tax rate above the tax rate thresholds if used for qualification. Agency Response. The Foundation School Program does not generally use current year property values to define tax effort. In some instances, districts can receive an adjustment to the local fund assignment if property value declines are large enough. Statutory language for the property values to be used in calculating tax effort does not support the use of more current values. Comment. Martinsville ISD has been assigned local property values for use in state funding for tax year 1993. The local values are higher than the state study values. In most recent years, the district has been assigned state study values. The result is a calculated total tax effort that falls just below the $1.30 threshold. The district asks that state study values be used instead. Agency Response. The statute clearly indicates that the values to be used in determining tax effort are those determined under the Government Code, Chapter 403, Subchapter M. An appeals process exists for districts to protest the findings of the property value study and the value assignment. The final values as certified by the comptroller should be used in tax effort determination. The new section is adopted under the Texas Education Code, sec.42.004, which authorizes the commissioner of education, in accordance with the rules of the State Board of Education, to take such action and require such reports as may be necessary to implement and administer the Foundation School Program. sec.61.1031. School Facility Assistance Program. (a) Application process. A school district must complete an application requesting funds under the School Facility Assistance Program. The application shall contain the following elements: (1) a project description sufficiently detailed to identify the instructional use of the facility; (2) an estimated cost; and (3) a description of the source of funds for the district share of project cost. (b) District eligibility. (1) To be eligible for a grant of state funds, a school district must have property wealth per student in average daily attendance no greater than an amount determined annually by the commissioner of education. For this purpose, the property values to be used shall be the values certified by the Comptroller of Public Accounts for the prior tax year. The count of students in average daily attendance shall be the projected attendance for the school year of the grant as reported to the Texas Education Agency (TEA) and used in the legislative payment estimate for the school year. (2) A district must also have exhibited a total tax rate of $1.30 or a debt service tax rate of $.20 in the last school year of the preceding biennium to be considered eligible. These tax rates are defined as taxes collected from September 1 through August 31 of the last year of the preceding biennium, divided by the values certified by the Comptroller of Public Accounts for the tax year that precedes the year of the collections. (3) In the case of a district that has used state funds provided by the guaranteed yield as a part of the debt service requirement, credit will be given for debt service tax rate computation as if the district had a tax rate sufficient to service the debt without the use of guaranteed yield funds, but only to the extent of the guaranteed yield funds generated by the debt service tax collections of the district. Districts must be prepared to document this practice in order to receive proper credit. A district that has adopted a strategy of using maintenance funds to service debt to fulfill a maintenance of effort requirement for federal impact aid may have its debt service tax rate computed on the basis of the debt service payment requirement. (c) Payment schedule. Payments shall be made quarterly, beginning in January after the grant award. The payment amount shall be based on a proportionate share of the work completed. (d) Deadlines. The submission deadline for applications seeking funds shall be a date chosen by the commissioner of education and stated in the request for proposal. (e) Reports required. The commissioner may require such information and reports as are necessary to assure compliance with applicable laws. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600612 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: October 20, 1995 For further information, please call: (512) 463-9701 Chapter 65. Technology Subchapter A. Center for Educational Technology 19 TAC sec.sec.65.1-65.4 The Texas Education Agency (TEA) adopts the repeal of sec. sec.65.1-65.4, concerning the Center for Educational Technology, without changes to the proposed text as published in the November 21, 1995, issue of the Texas Register (20 TexReg 9630). The sections designate membership category names and requirements for participating in the center. The repeals are necessary to comply with the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600613 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Chapter 68. Transportation Subchapter A. Transportation Operations The Texas Education Agency (TEA) adopts the repeal of sec. sec.68.11-68.14, 68. 21-68.26, 68.32-68.34, and 68.111-68.113, concerning student transportation services, without changes to the proposed text as published in the November 21, 1995, issue of the Texas Register (20 TexReg 9630). The sections establish requirements for student transportation, including definitions and procedures related to: school district responsibility for transportation services; student eligibility for services; types of transportation; and transportation administration. The sections also adopt by reference several TEA forms and publications related to student transportation services. The repeals are necessary to comply with the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. No comments were received regarding adoption of the repeals. Commitment to Providing Student Transportation Services 19 TAC sec.68.11 The repeal is adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600614 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Student Eligibility for Transportation Services 19 TAC sec.sec.68.12-68.14 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600615 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Types of Transportation 19 TAC sec.sec.68.21-68.26 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600616 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Transportation Administration 19 TAC sec.sec.68.32-68.34 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600617 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Subchapter B. Adoptions by Reference 19 TAC sec.sec.68.111-68.113 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600618 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Chapter 78. Vocational and Applied Technology Education The Texas Education Agency (TEA) adopts the repeal of sec. sec.78.1-78.3, 78. 10, and 78.11, concerning vocational and applied technology education, without changes to the proposed text as published in the November 21, 1995, issue of the Texas Register (20 TexReg 9632). The sections establish definitions, requirements, and procedures related to: establishing a career and technology program; establishing a district-wide local advisory council; contracted instruction; and the quality work force planning system. The repeals are necessary to comply with the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. Comments regarding adoption of the repeals were received from 15 career and technology education administrators from school districts in various parts of the state. The administrators made the following comments. Comment. The administrators have relied on labor market information from quality workforce planning committees to ensure that district course offerings prepare students for careers that will be in demand when the students graduate. Without quality workforce planning committees, the administrators are concerned that they may not have access to current labor market information on which to base their course offerings. Agency Response. Labor market information may be supplied by local workforce development boards, which are currently being formed. Comment. Several administrators were worried about the repeal of authority for local advisory councils for vocational education under Chapter 78. The advisory councils are composed of representatives from the public, business, industry and labor, parents, career and technology educators, and others. The administrators believe that these committees may not continue without supporting statute, and that career and technology education would subsequently lose valuable input from the community. Agency Response. School districts that rely on input from a local advisory council for vocational education may maintain the local council without statutory authority. Local workforce development boards may fulfill some functions of the old local advisory councils. Subchapter A. General Provisions 19 TAC sec.sec.78.1-78.3 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600619 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Subchapter B. Quality Work Force Planning 19 TAC sec.78.10, sec.78.11 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600620 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Chapter 97. Planning and Accreditation 19 TAC sec.sec.97.1-97.9 The Texas Education Agency (TEA) adopts the repeal of sec. sec.97.1-97.9, concerning planning and accreditation, without changes to the proposed text as published in the November 21, 1995, issue of the Texas Register (20 TexReg 9632). The sections establish definitions, requirements, and procedures related to: the purpose of accreditation; accreditation status; campus performance ratings; the accreditation process; special investigations; the appeal process; and accreditation of nonpublic schools. The repeals are necessary to comply with the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. A new Chapter 97 is adopted in a separate submission. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600621 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 19 TAC sec.sec.97.1-97.7 The Texas Education Agency (TEA) adopts new sec.sec.97.1-97.7, concerning planning and accreditation, without changes to the proposed text as published in the November 21, 1995, issue of the Texas Register (20 TexReg 9633). The sections establish definitions, requirements, and procedures related to: the purpose of accreditation; accreditation status; campus performance ratings; and placing on probation or revoking a home-rule school district charter or an open- enrollment charter school. The new sections are necessary to establish an accountability system that is driven by excellence and equity in student performance and that provides assistance and intervention, as appropriate, as close as possible to the actual point of delivery of educational services. The sections are adopted as part of the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. The repeal of current Chapter 97 is adopted in a separate submission. The Texas Private School Accreditation Commission (TPSAC) expressed concern about recognition of its accreditation function. A letter of agreement between the commissioner of education and TPSAC regarding the process for accrediting non-public schools has been formalized. The new sections are adopted under the Texas Education Code, sec.sec.7.102(b)(9) , 12.027, and 12.028, which authorizes the State Board of Education to adopt rules relating to placing on probation or revoking a home- rule school district charter; the Texas Education Code, sec.sec.7.102(b)(10), 12.115, and 12.116, which authorizes the State Board of Education to adopt rules relating to granting, modifying, placing on probation, revoking, or denying renewal of the charter of an open-enrollment charter school; the Texas Education Code, sec.39.051(a), which authorizes the State Board of Education to adopt a set of indicators of the quality of learning on a campus; and the Texas Education Code, sec.39.072(a) , which authorizes the State Board of Education to adopt rules to evaluate the performance of school districts and to assign to each district a performance rating. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600622 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Chapter 105. Foundation School Program Subchapter A. Definitions 19 TAC sec.105.1 The Texas Education Agency (TEA) adopts new sec.105.1, concerning the Foundation School Program, without changes to the proposed text as published in the November 21, 1995, issue of the Texas Register (20 TexReg 9635). The section defines the terms "tax levy" and "tax collection" for the purposes of calculating certain state aid entitlements under the Texas Education Code, Chapter 42, and implementing the wealth-equalizing provisions of the Texas Education Code, Chapter 41. The new section is necessary to help achieve a fair and reasonable distribution of state funds for public education The new section is adopted as part of the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. The repeal of current Chapter 105 is adopted in a separate submission. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Education Code, sec.42.004, which authorizes the commissioner of education, in accordance with the rules of the State Board of Education, to take such action and require such reports consistent with the Texas Education Code, Chapter 42, as may be necessary to implement and administer the Foundation School Program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600625 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 The Texas Education Agency (TEA) adopts the repeal of sec.105.11 and sec.105.31, concerning the Foundation School Program, without changes to the proposed text as published in the November 21, 1995, issue of the Texas Register (20 TexReg 9636). The sections define the terms "tax levy" and "tax collection" for the purpose of calculating certain state aid entitlements under the Texas Education Code. The sections also establish the authority and procedures under which a school may operate on an abbreviated day. The repeals are necessary to comply with the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. A new Chapter 105 is adopted in a separate submission. No comments were received regarding adoption of the repeals. Subchapter A. Definitions 19 TAC sec.105.11 The repeal is adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600623 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Subchapter B. School Year 19 TAC sec.105.31 The repeal is adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600624 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Chapter 113. Federal Funds To Support Public Education in Texas The Texas Education Agency (TEA) adopts the repeal of sec. sec.113.1, 113.21, 113.22, 113.31, and 113.32, concerning federal funds to support public education, without changes to the proposed text as published in the November 21, 1995, issue of the Texas Register (20 TexReg 9636). The sections establish the system of receiving complaints and appealing TEA action concerning federally funded programs. The repeals are necessary to comply with the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. No comments were received regarding adoption of the repeals. Subchapter A. Federal Funds for Local Education Agencies 19 TAC sec.113.1 The repeal is adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600626 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Subchapter B. Complaint Procedures for Federal Programs 19 TAC sec.113.21, sec.113.22 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600627 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Subchapter C. Hearing Procedures for Federal Programs 19 TAC sec.113.31, sec.113.32 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600628 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Chapter 121. Public School Finance-Personnel The Texas Education Agency (TEA) adopts the repeal of sec. sec.121.1, 121. 11- 121.14, 121.31-121.35, 121.41, and 121.42, concerning public school finance with regard to personnel, without changes to the proposed text as published in the November 21, 1995, issue of the Texas Register (20 TexReg 9637). The sections establish definitions, requirements, and procedures related to: personnel records; years of service for salary increment purposes; and the salary schedule. The repeals are necessary to comply with the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. The Association of Texas Professional Educators (ATPE), the Texas Classroom Teachers Association (TCTA), and the Texas Federation of Teachers (TFT) expressed concern about repealing the sections related to recognizing creditable years of service. The TEA does not believe statute authorizes the State Board of Education to adopt new rules in this area. However, the lack of rules does not eliminate the requirement that teachers be appropriately placed on the minimum salary schedule according to experience. The TEA has affirmed that prior interpretations of statute regarding placement will be given great weight in any appeal brought before the commissioner of education. Subchapter A. General Provisions 19 TAC sec.121.1 The repeal is adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600629 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Subchapter B. Personnel Records 19 TAC sec.sec.121.11-121.14 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600630 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Subchapter C. Years of Service for Salary Increment Purposes 19 TAC sec.sec.121.31-121.35 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600631 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Subchapter D. Salary Schedule 19 TAC sec.121.41, sec.121.42 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600632 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 7, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Chapter 129. Student Attendance The Texas Education Agency (TEA) adopts the repeal of sec. sec.129.1, 129.21, and 129.22, concerning student attendance, without changes to the proposed text as published in the October 6, 1995, issue of the Texas Register (20 TexReg 8146). The sections establish requirements for attendance, including definitions and procedures related to: free attendance in general, student attendance accounting for state funding purposes, and attendance of court-related students. The repeals are necessary to comply with the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. New Subchapters A and B of Chapter 129 implementing provisions of Senate Bill 1 related to attendance are adopted in a separate submission. No comments were received regarding adoption of the repeals. Subchapter A. Student Attendance Allowed 19 TAC sec.129.1 The repeal is adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600633 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: October 6, 1995 For further information, please call: (512) 463-9701 Subchapter B. Student Attendance Accounting 19 TAC sec.129.21, sec.129.22 The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified Texas Education Agency rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600634 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: October 6, 1995 For further information, please call: (512) 463-9701 The Texas Education Agency (TEA) adopts new sec.sec.129.1, 129.21, and 129.22, concerning student attendance, with changes to the proposed text as published in the October 6, 1995, issue of the Texas Register (20 TexReg 8147). The sections establish requirements for attendance, including definitions and procedures related to: free attendance in general, student attendance accounting for state funding purposes, and attendance of court-related students. The new sections are necessary to establish a well-defined and structured methodology of accounting for students for attendance and state funding purposes. The sections are adopted as part of the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. The repeals of current Subchapter A and Subchapter B of Chapter 129 are adopted in separate submissions. The adopted new sections introduce two changes to the sections currently in Chapter 129, Subchapter A and Subchapter B, to comply with Senate Bill 1. First, current sec.129.21(n), pertaining to guidelines for accounting for late afternoon and evening schools, is deleted. Second, the name "Texas Education Agency" is substituted for "Central Education Agency" throughout the sections. The following changes to the new sections were introduced after the sections were proposed. Throughout the sections, cross-references to statute have been updated to refer to provisions of Senate Bill 1, 74th Texas Legislature, 1995, as codified in the Texas Education Code. The addition of new sec.129.21(k)(4) and changes to sec.129.21(l) clarify that a student not actually on campus at the time attendance is taken may be considered in attendance for Foundation School Program purposes if the student has a documented appointment with a health care professional. The Texas Association of School Boards (TASB) recommended the changes concerning a student who has a documented appointment with a health care professional. Subchapter A. Student Attendance Allowed 19 TAC sec.129.1 The new section is adopted under the Texas Education Code, sec.42.004, which authorizes the State Board of Education to promulgate rules concerning the Foundation School Program. sec.129.1. Free Attendance in General. (a) Definitions. Identification is required within 30 days of a child's enrollment in a Texas school, in accordance with the Texas Education Code, sec.25.002. For the purposes of identification, the following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Documents that are suitable for identification -Shall be defined by the commissioner of education. (2) The child's records-Include a minimum set of data and documentation established by the commissioner of education. The minimum set of data will include the child's social security number or a state-approved alternative identification number as assigned by the Public Education Information Management System (PEIMS). (b) Children shall not be denied enrollment or be removed solely because they fail to meet the requirements of subsection (a) of this section. (c) Students in this country under a bona fide exchange program are eligible to attend school in the designated district of residence. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600635 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: October 6, 1995 For further information, please call: (512) 463-9701 Subchapter B. Student Attendance Accounting 19 TAC sec.129.21, sec.129.22 The new sections are adopted under the Texas Education Code, sec.42.004, which authorizes the State Board of Education to promulgate rules concerning the Foundation School Program. sec.129.21. Requirements for Student Attendance Accounting for State Funding Purposes. (a) All public schools in Texas shall maintain records to reflect the average daily attendance (ADA) for the allocation of Foundation School Program funds and other funds allocated by the Texas Education Agency. Superintendents, principals, and teachers shall be responsible to their school boards and to the state to maintain accurate, current attendance records. (b) The commissioner of education shall be responsible for providing guidelines for attendance accounting in accordance with state law. (c) The commissioner of education shall be responsible for providing all the necessary records and procedures required of school districts in preparation of a daily attendance register. (d) Districts shall maintain records and make reports concerning student attendance and participation in special programs as required by the commissioner of education. (e) If a school district chooses to use a locally developed record or automated system, it must contain the minimum information required by the commissioner of education. (f) The commissioner of education shall provide for special circumstances regarding attendance accounting in accord with the provisions of law. (g) When classroom instruction is organized on a departmentalized basis, a central attendance accounting system must be used. (h) A student must be enrolled for at least two hours to be considered in membership for half-day, and for at least four hours to be considered in membership for one full day. (i) Attendance for all grades shall be determined by the absences recorded in the second or fifth period of the day, unless permission has been obtained from the Texas Education Agency for an alternate period to record absences. (1) Students enrolled on a half-day basis may earn only half-day of attendance each school day. Attendance is determined for these pupils by recording absences in a period during the half-day that they are scheduled to be present. (2) The established period in which absences are recorded may not be changed during the school year. (3) Students absent at the time the attendance roll is taken, during the daily period selected, are counted absent for the entire day. Students present at the time the attendance roll is taken, during the daily period selected, are counted present for the entire day. (j) A student who is not actually in school at the time attendance is taken shall not be counted in attendance for Foundation School Program funding purposes unless the student is participating in an activity which meets the conditions set out in subsection (k) of this section. (k) A student not actually on campus at the time attendance is taken may be considered in attendance for Foundation School Program purposes under the following conditions. (1) The student is participating in an activity which is approved by the local board of school trustees and is under the direction of a member of the professional staff of the school district, or an adjunct staff member who: (A) has a minimum of a bachelor's degree; and (B) is eligible for participation in the Teacher Retirement System of Texas. (2) The student is a Medicaid-eligible child participating in the Early and Periodic Screening, Diagnosis, and Treatment Program (EPSDT) implemented by the Texas Department of Human Services with contractual cooperation of the Texas Department of Health. Such students may be excused for up to one day at any time without loss of ADA. (3) Excused days for travel under the Texas Education Code, sec.25.087, shall be limited to not more than one day for travel to and one day for travel from the site where the student will observe the holy days. (4) The student has a documented appointment with a health care professional during regular school hours. The appointment should be supported by a document such as a note from the health care professional. (l) In accordance with the Texas Education Code, sec.25.087, students may be excused for medical, dental, and psychological appointments; for special education assessment procedures; and for special education related services. (m) The superintendent of schools is responsible for the safekeeping of all attendance records and reports. The superintendent of schools may determine whether the properly certified attendance records or reports for the school year are to be filed in the central office or properly stored on the respective school campuses of the district. Regardless of where such records are filed or stored, they must be readily available for audit by the Division of Audits of the Texas Education Agency. sec.129.22. Court-Related Students. (a) Any student referred to a juvenile court for delinquent conduct or conduct indicating a need for supervision shall receive excused absences for any missed class when: (1) the juvenile judge or probation officer assigned has detained the student or required the student to participate in activities related to the student's referral; (2) detention or participation in such activities resulted in an absence from class; (3) the cause of such absence is communicated in writing by the probation officer to school district personnel; and (4) the student successfully completes all missed assignments as required by the school district. (b) Any student referred to the Texas Department of Human Services or a county or local welfare unit on the basis that he or she is abused or neglected shall receive excused absences for any missed class when: (1) the caseworker assigned has required the student to participate in activities related to the student's referral; (2) participation in such activities resulted in an absence from class; (3) the cause of such absence is communicated in writing by the caseworker to school district personnel; and (4) the student successfully completes all missed assignments as required by the school district. (c) It is the responsibility of the liaison officer appointed in accordance with the Texas Education Code, sec.37.014, to assist students and teachers to ensure that students are provided the opportunity to complete all missed assignments. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600636 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1996 Proposal publication date: October 6, 1995 For further information, please call: (512) 463-9701 Chapter 176. Minimum Standards for Operation of Licensed Texas Driver Training Programs The Texas Education Agency (TEA) adopts new sec.sec.176.1-176.21 and sec.sec.176. 101-176.122, concerning driver training programs. Sections 176.2, 176.110, and 176.121 are adopted with changes to the proposed text as published in the November 21, 1995, issue of the Texas Register (20 TexReg 9638). Sections 176.1, 176.3-176.21, 176.101-176.109, 176.111-176.120, and 176.122 are adopted without changes and will not be republished. The sections establish minimum standards of operation for driver training schools and for driving safety schools and course providers, including definitions, requirements, and procedures related to: school and instructor licensure; exempt schools; school personnel; courses of instruction; school facilities and equipment; student complaints; records; and application fees and other charges. The new sections are necessary to increase awareness of traffic safety and move toward reducing the toll in human suffering and property loss inflicted by vehicle crashes. The sections are adopted as part of the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. The repeal of current Chapter 176 is adopted in a separate submission. Under Senate Bill 1, a rule adopted by the State Board of Education (SBOE) normally does not take effect until the beginning of the school year that begins at least 90 days after the date the rule is adopted. However, the Bill provides that an SBOE rule may take effect earlier under certain circumstances. The SBOE, by an affirmative vote of at least two-thirds of the board members, adopts an earlier effective date of February 15, 1996. The earlier date is necessary to implement Senate Bill 964, 74th Texas Legislature, 1995, which has an effective date of September 1, 1995. The adopted new sections contain several changes to current Chapter 176, including the following. Separate licensure structures are established for driver education and driving safety schools, as well as for the respective school instructors. A private driver education school may conduct a driver training course at an accredited public or nonpublic secondary school for the students of that school. Course providers of driving safety programs must pay for the evaluation and approval of a driving safety program and may not operate the programs in Texas without meeting licensing requirements that include education and experience, bonding, and financial stability. Extension sites of driving safety schools are no longer allowed. Driving safety course providers must be licensed and bonded. License fees of $150 for each driving safety school and $2,000 for each course provider are required. A driving safety instructor or a private, licensed school driver education instructor is required to present evidence of completion of continuing education at each renewal of the instructor's license. Instructor development programs may be approved to be offered in the private, licensed driving schools. Driving safety course providers may be held accountable for violating provisions of adopted Chapter 176. Driving safety instructors no longer have access to certificates of course completion used to dismiss traffic tickets or obtain insurance discounts. Driver education certificates will be supplied by TEA to the private, licensed driver education schools. The schools must account for these certificates and ensure that only qualified graduates receive them. A school may be declared closed when the facilities are vacated, students are dismissed for more than ten class days, or when students are transferred to another location without prior notice to TEA. The following changes to the new sections were introduced after the sections were proposed. In sec.176.2, language that cross-references sec.176.1001 was added to clarify the definitions of the terms "break" and "DE-964." In addition, the definition of the term "uniform certificate of course completion," which contains a cross- reference to sec.176.1001, was added to sec.176.2. At the time sec.176.2 was proposed, sec.176.1001 was not in effect. Section 176.110(a)(1)(C)(xi) was deleted. The SBOE determined that statute does not require the regulation of meals, incentives or promotions. Language was added to sec.176.121(d) to clarify that a driving safety school must include the course provider name or number when advertising. The following comments were received regarding adoption of the new sections. Comment. Ticket Blasters expressed concern that provisions of the rules pertaining to promotions and incentives offered with driving safety courses are too subjective and open to many interpretations. Comment. The Johnny Hernandez Insurance Agency does not believe TEA should dictate course cost with or without incentives. Comment. Twin Cities Driving Schools, Inc., is opposed to statute requiring the price of a driving safety course be set at $25. In addition, Twin Cities Driving Schools, Inc., believes that, if the price is set for all driving safety courses, the student should be required to pay for any incentives. Comment. Sears Driving School, requested that provisions of the rules pertaining to the cost of a driving safety course be strengthened by clarifying the intent concerning items included and excluded from the minimum cost of a course. Sears Driving School and Houston Community College recommended disallowing any incentives, meals, or promotions. Comment. Ticket Defensive Driving School and Life Defensive Driving recommend charging $25 for a driving safety course and not allowing any incentives. Comment. Lubbock Driving School recommends not allowing meals and other incentives. Comment. Allstar Defensive Driving School, Affiliated Driving School, Bradley Enterprises, and the Safety Council of Greater Houston expressed opposition to regulation of incentives, meals, or promotions offered with driving safety courses. Comment. Dallas Funny Bones Defensive Driving School and Comedy Connection Traffic Dismissal commented in favor of requiring students to pay separately for any incentives, meals, or promotions. Agency Response. The SBOE determined that current statute does not require the regulation of meals, incentives, or promotions. Section 176.110(a)(1)(C) (xi) was deleted. Comment. USA Training Company, Inc., requested that driving safety schools be required to advertise with the name of the licensed course provider or the course provider number in lieu of the name or number of the driving safety school. This change was suggested so the general public and TEA will be able to identify who to contact in the event of a problem or violation at a driving safety school. Agency Response. The SBOE determined that the recommended change furthers the intent of statute by requiring more accountability of driving safety course providers. Students and TEA staff will be able to more quickly identify the responsible course providers. Language was added to sec.176.121(d). Comment. ProAdvisor-Waco Driving School, requested that the rules be changed to allow teaching assistants to provide classroom driver education instruction. Agency Response. Current statute prohibits consideration of this request. An individual who provides classroom driver education instruction is required to have a Texas teaching certificate. A teaching assistant is not a certified Texas teacher. The proposed change was not made. Comment. The Driving School Association of Texas (DSAT), requested that a proposed rule be developed that would allow course providers to receive approval of a policy for pro rata refunds for driving safety courses. Agency Response. A rule is not necessary to satisfy this request. Current statute provides for full refund of a student who cancels the course and has not successfully completed the course within 72 hours of signing the enrollment contract. The new rules adopted in this submission provide for makeup of a driving safety course within 90 days of the first scheduled date of the class. Course providers are allowed to submit refund policies for approval. A policy that does not interfere with the current statute and administrative rules can be approved by TEA. No changes were made to the rules. Comment. The DSAT expressed opposition to, and requested justification for, assessing a $200 renewal fee for a driver education school license. Agency Response. Current statute allows TEA to waive this renewal fee if the revenue generated by the issuance of driver education certificates is sufficient to fund the cost of administering the Texas Driver and Traffic Safety Education Act and the Uniform Act Regulating Traffic on Highways, sec.143A. The TEA estimates that the revenue for issuing certificates will total $140,000, while expenses will total $1,109,846. Subchapter A. Minimum Standards for Operation of Texas Driver Education Schools 19 TAC sec.sec.176.1-176.21 The new sections are adopted under Texas Civil Statutes, Article 4413(29c) , sec.4(a), which authorize the State Board of Education to adopt rules necessary to carry out the Texas Driver and Traffic Safety Education Act in consultation with the Driver Training School Advisory Commission. sec.176.2. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Advertising-Any affirmative act, whether written or oral, designed to call public attention to a school and/or course in order to arouse a desire to patronize that school and/or course. Branch school-A licensed driver education school that has the same ownership and name as a licensed primary driver education school. Break-An interruption in a course of instruction as defined by sec.176.1001. Change of ownership of a school-A change in the control of the school. Any agreement to transfer the control of a school is considered to be a change of ownership. The control of a school is considered to have changed: (A) in the case of ownership by an individual, when more than 50% of the school has been sold or transferred; (B) in the case of ownership by a partnership or a corporation, when more than 50% of the school or of the owning partnership or corporation has been sold or transferred; or (C) when the board of directors, officers, shareholders, or similar governing body has been changed to such an extent as to significantly alter the management and control of the school. Chief school official-The owner, director, or assigned liaison of a licensed driver education school. DE-964-The driver education certificate of completion as defined by sec.176.1001. Division-The division of the Texas Education Agency (TEA) responsible for executing the provisions of the law, rules, regulations, and standards as contained in this chapter and licensing Texas driver training programs. Division director -The person designated by the commissioner of education of education to carry out the functions and regulations governing the driver education schools and designated as director of the division responsible for licensing driver training programs. Good reputation -A person is considered to be of good reputation if: (A) there are no felony convictions related to the operation of a school, and the person has been rehabilitated from any other felony convictions; (B) there are no convictions involving crimes of moral turpitude; (C) within the last ten years, the person has never been successfully sued for fraud or deceptive trade practice; (D) the person does not own or operate a school currently in violation of the legal requirements involving fraud, deceptive trade practices, student safety, quality of education, or refunds; has never owned or operated a school with habitual violations; and has never owned or operated a school or course provider which closed with violations including, but not limited to, unpaid refunds or selling, trading, or transferring a DE-964 or uniform certificate of course completion to any person or school not authorized to possess it; (E) the person has not withheld material information from representatives of TEA or falsified instructional records or any documents required for approval or continued approval; and (F) in the case of an instructor, there are no misdemeanor or felony convictions involving driving while intoxicated over the past seven years. Moral turpitude -Conduct that is inherently immoral or dishonest. New course-A driver education course is considered new when it has not been offered previously or has been offered and then discontinued. Primary or main school-A licensed driver education school that may have branch schools. Public or private school-An accredited public or non-public secondary school. Uniform certificate of course completion-A certificate of course completion as defined by sec.176.1101. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600638 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 15, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Subchapter B. Minimum Standards for Operation of Texas Driving Safety Schools and Course Providers 19 TAC sec.sec.176.101-176.122 The new sections are adopted under Texas Civil Statutes, Article 4413(29c) , sec.4(a), which authorizes the State Board of Education to adopt rules necessary to carry out the Texas Driver and Traffic Safety Education Act in consultation with the Driver Training School Advisory Commission. sec.176.110. Courses of Instruction. (a) This section contains requirements for driving safety and instructor development courses. For each course, the following curriculum documents and materials are required to be submitted as part of the application for approval. If the course meets the minimum requirements set forth in these rules, an approval may be granted by the division director on behalf of the State Board of Education (SBOE). Other types of courses may be considered by the division director and submitted to SBOE for consideration for approval. (1) Driving safety courses. (A) Educational objectives. The educational objectives of driving safety courses shall include, but not be limited to: promoting respect for and encouraging observance of traffic laws and traffic safety responsibilities of drivers and citizens; reducing traffic violations; reducing traffic-related injuries, deaths, and economic losses; and motivating continuing development of traffic-related competencies. (B) Minimum course content. A driving safety course shall include, as a minimum, materials adequate to address the following topics and to comply with the minimum time requirements for each topic and the course as a whole. (i) Course introduction-minimum of ten minutes (instructional objective-to orient students to the class). Instruction shall address the following topics: (I) purpose and benefits of the course; (II) course and facilities orientation; (III) requirements for receiving course credit; and (IV) student course evaluation procedures. (ii) The traffic safety problem-minimum of 15 minutes (instructional objectives-to develop an understanding of the nature of the traffic safety problem and to instill in each student a sense of responsibility for its solution). Instruction shall address the following topics: (I) identification of the overall traffic problem in the United States, Texas, and the locale where the course is being taught; (II) death, injuries, and economic losses resulting from motor vehicle crashes in Texas; and (III) five leading causes of motor vehicle crashes in Texas as identified by the Department of Public Safety. (iii) Factors influencing driver performance-minimum of 20 minutes (instructional objective-to identify the characteristics and behaviors of drivers and how they affect driving performance). Instruction shall address the following topics: (I) attitudes, habits, feelings, and emotions; (II) alcohol and other drugs; (III) physical condition; (IV) knowledge of driving laws and procedures; and (V) understanding the driving task. (iv) Traffic laws and procedures-minimum of 30 minutes (instructional objectives-to identify the requirements of, and the rationale for, applicable driving laws and procedures and to influence drivers to comply with the laws on a voluntary basis). Instruction shall address the following topics: (I) passing; (II) right-of-way; (III) turns; (IV) stops; (V) speed limits; (VI) railroad crossings; (VII) categories of traffic signs, signals, and highway markings; (VIII) pedestrians; (IX) improved shoulders; (X) intersections; (XI) occupant restraints; (XII) law enforcement and emergency vehicles (this category will be temporary until the need is substantiated by documentation from the Department of Public Safety on the number of deaths or injuries involved because of improper procedures used by a citizen when stopped by a law enforcement officer); and (XIII) other laws as applicable (i.e., financial responsibility/compulsory insurance). (v) Special skills for difficult driving environments-minimum of 20 minutes (instructional objectives-to identify how special conditions affect driver and vehicle performance and identify techniques for management of these conditions). Instruction shall address the following topics: (I) inclement weather; (II) traffic congestion; (III) city, urban, rural, and expressway environments; (IV) reduced visibility conditions-hills, fog, curves, light conditions (darkness, glare, etc.), etc.; and (V) roadway conditions. (vi) Physical forces that influence driver control-minimum of 15 minutes (instructional objective-to identify the physical forces that affect driver control and vehicle performance). Instruction shall address the following topics: (I) speed control (acceleration, deceleration, etc.); (II) traction (friction, hydroplaning, stopping distances, centrifugal force, etc.); and (III) force of impact (momentum, kinetic energy, inertia, etc.). (vii) Perceptual skills needed for driving-minimum of 20 minutes (instructional objective-to identify the factors of perception and how the factors affect driver performance). Instruction shall address the following topics: (I) visual interpretations; (II) hearing; (III) touch; (IV) smell; (V) reaction abilities (simple and complex); and (VI) judging speed and distance. (viii) Defensive driving strategies-minimum of 40 minutes (instructional objective-to identify the concepts of defensive driving and demonstrate how they can be employed by drivers to reduce the likelihood of crashes, deaths, injuries, and economic losses). Instruction shall address the following topics: (I) trip planning; (II) evaluating the traffic environment; (III) anticipating the actions of others; (IV) decision making; (V) implementing necessary maneuvers; (VI) compensating for the mistakes of other drivers; (VII) avoiding common driving errors; and (VIII) interaction with other road users (motorcycles, bicycles, trucks, pedestrians, etc.). (ix) Driving emergencies-minimum of 40 minutes (instructional objective-to identify common driving emergencies and their countermeasures). Instruction shall address the following topics: (I) collision traps (front, rear, and sides); (II) off-road recovery, paths of least resistance; and (III) mechanical malfunctions (tires, brakes, steering, power, lights, etc.). (x) Occupant restraints and protective equipment-minimum of 15 minutes (instructional objective-to identify the rationale for having and using occupant restraints and protective equipment). Instruction shall address the following topics: (I) legal aspects; (II) vehicle control; (III) crash protection; (IV) operational principles (active and passive); and (V) helmets and other protective equipment. (xi) Alcohol and traffic safety-minimum of 40 minutes (instructional objective-to identify the effects of alcohol on roadway users) . Instruction shall address the following topics related to the effects of alcohol on roadway users: (I) physiological effects; (II) psychological effects; (III) legal aspects; (IV) synergistic effects; and (V) countermeasures. (xii) Comprehensive examination and summation-minimum of 15 minutes (this shall be the last unit of instruction). (xiii) The remaining required 20 minutes of instruction shall be allocated to the topics included in the minimum course content, excluding clause (i) and clause (xii) of this subparagraph, or to additional driving safety topics that satisfy the educational objectives of the course. (C) Course management. Approved driving safety courses shall be presented in compliance with the following guidelines. (i) No more than 50 students per class are permitted in driving safety courses. (ii) The total length of the course shall consist of a minimum of 360 minutes. (iii) A minimum of 300 minutes of instruction is required. (iv) Sixty minutes of time, exclusive of the 300 minutes of instruction, shall be dedicated to break periods or to the topics included in the minimum course content, excluding the course introduction and comprehensive examination and summation. All break periods shall be provided after instruction has begun and before the comprehensive exam and course summary. (v) Administrative procedures, such as enrollment, shall not be included in the 300 minutes of the course. (vi) Courses conducted in a single day shall allow a minimum of 30 minutes for lunch, which is exclusive of the total course length of 360 minutes. (vii) Courses taught over a period longer than one day shall provide breaks on a schedule equitable to those prescribed for one-day courses. However, all breaks shall be provided prior to the last unit of the instructional day or the comprehensive exam, whichever is appropriate. (viii) The order of topics shall be approved by the Texas Education Agency (TEA) as part of the course approval, and for each student, the course shall be taught in the order identified in the approved application. (ix) Students shall not receive a uniform certificate of course completion unless that student receives a grade of at least 70% on the final examination. (x) The TEA shall produce and supply to course providers, at no cost to the course providers, copies of a short introductory video that will provide information about the requirements for completing a six-hour driving safety course and the penalties involved for accepting a uniform certificate of course completion for a course that was not six hours in length. The course provider shall ensure that the video is shown to all students of each class during the introduction. Alternative methods for providing the required information to the students may be submitted by the course provider and approved at the discretion of the division director. (D) Driving safety course guides. A course guide is a description of the content of the course and the techniques of instruction that will be used to present the course. The guide shall be bound into one unit or contained in a hole-punched notebook with a cover and a table of contents. To be approved for licensing, each course provider shall submit as part of the application a course guide that includes the following: (i) a statement of the course's traffic safety goal and philosophy; (ii) a statement of policies and administrative provisions related to instructor conduct, standards, and performance; (iii) a statement of policies and administrative provisions related to student conduct and attendance; (iv) a statement of policy addressing entrance requirements and special conditions of students, such as the inability to read, language barriers, and other disabilities; (v) a list of: relevant instructional resources, such as textbooks, audio and visual media and other instructional materials, and equipment that will be used in the course; and the furniture deemed necessary to accommodate the students in the course, such as tables, chairs, and other furnishings. A variety of relevant motion picture films, slides, videos, or tape recordings shall be used for at least 60 minutes but cannot be used in excess of 150 minutes of the 300 minutes of instruction. The resources may be included in a single list or may appear at the end of each instructional unit; (vi) a clear identification of the order in which the units of instruction will be presented, and for each student, the course shall be taught in the order identified in the approved application; (vii) written or printed materials that shall be provided for use by each student as a guide to the course. Exceptions to this requirement may be made by the division director on an individual basis; (viii) a description of the plans under which the course will be presented; (ix) units of instruction sufficient to present the topics identified in subparagraph (B) of this paragraph and any additional topics unique to the course. Each instructional unit shall include the following: (I) the subject of the unit; (II) the instructional objectives of the unit; (III) time to be dedicated to the unit; (IV) an outline of major concepts to be presented; (V) instructional activities to be used to present the material (lecture, films, other media, small-group discussions, workbook activities, written and oral discussion questions, etc.). When small-group discussions are planned, the course guide shall identify the questions that will be assigned to the groups; (VI) instructional resources for each unit; and (VII) techniques for evaluating the comprehension level of the students relative to the instructional unit. If oral or written questions are to be used to measure student comprehension levels, they shall be included in the course guide. The evaluative technique may be used throughout the unit or at the end; and (x) a completed form cross-referencing the instructional units to the topics identified in subparagraph (B) of this paragraph. A form to cross-reference the instructional units to the required topics and topics unique to the course will be provided by the division. (E) Instructor training guides. An instructor training guide contains a description of the plan, training techniques, and curriculum to be used to train instructors to present the concepts of the approved driving safety course described in the applicant's driving safety course guide. Each course provider shall submit as part of the application an instructor training guide that is bound or hole-punched and placed in a binder and that has a cover and a table of contents. The guide shall include the following: (i) a statement of the philosophy and instructional goals of the training course; (ii) a description of the plan to be followed in training instructors. The plan shall include, as a minimum, provisions for the following: (I) instruction of the trainee in the course curriculum; (II) training the trainee in the techniques of instruction that will be used in the course; (III) training the trainee about administrative procedures and course provider policies; (IV) demonstration of desirable techniques of instruction by the instructor trainer; (V) a minimum of 15 minutes of instruction of the course curriculum by the trainee under the observation of the instructor trainer as part of the basic training course; (VI) time to be dedicated to each training lesson; and (VII) a minimum of 600 minutes of instruction of the course in a regular approved course under the observation of a licensed instructor trainer. The instructor trainee shall provide instruction for two full courses. It is not mandatory that the two courses be taught as two complete courses; however, every instructional unit shall be taught twice; and (iii) instructional units sufficient to address the provisions identified in clause (ii)(I)-(V) of this subparagraph. The total time of the units shall contain a minimum of 24 instructional hours. Each instructional unit shall include the following: (I) the subject of the unit; (II) the instructional objectives of the unit; (III) time to be dedicated to the unit; (IV) an outline of major concepts to be presented; (V) instructional activities to be used to present the material (i.e., lecture, films, other media, small-group discussions, workbook activities, written and oral discussion questions). When small-group discussions are planned, the course guide shall identify the questions that will be assigned to the groups; (VI) instructional resources for each unit; and (VII) techniques for evaluating the comprehension level of the students relative to the instructional unit. If oral or written questions are to be used to measure student comprehension levels, they shall be included in the instructor training guide. The evaluative technique may be used throughout the unit or at the end. (F) Examinations. Each course provider shall submit for approval, as part of the application, tests designed to measure the comprehension level of students at the completion of the driving safety course and the instructor training course. Instructors may not be certified or students given credit for the driving safety course unless they score 70% or more on the final test. The course guide shall identify alternative testing techniques to be used for students with reading, hearing, or learning disabilities and policies for retesting students who score less than 70% on the final exam. The applicant may choose not to provide alternative testing techniques; however, students shall be advised of courses providing alternative testing prior to enrollment in the course. Test questions may be short answer, multiple choice, essay, or a combination of these forms. (G) Student course evaluation. Each student instructed in a driving safety course shall be given an opportunity to evaluate the course and the instructor on an official evaluation form. A master copy of the evaluation form will be provided to TEA. The evaluation forms must be collected at the conclusion of each class and kept on file at the location of the school for a period of one year. (H) Instructor performance. Driving safety course providers with more than one instructor shall submit a written plan describing how monitoring of instructor performance will be accomplished. The plan shall identify the criteria upon which the instructors will be evaluated, the procedure for evaluation, the frequency of evaluation, and the corrective action to be taken when instructors do not meet criteria established by the course provider. (I) Instructor training. Course providers shall ensure that instructors are provided with the most recent course materials and relevant data and information pertaining to driving safety. (J) State-level evaluation of driving safety courses. Each course provider shall collect adequate student data to enable TEA to evaluate the overall effectiveness of a course in reducing the number of violations and accidents of persons who successfully complete the course. The commissioner of education shall determine a level of effectiveness that serves the purposes of Texas Civil Statutes, Article 4413(29c). For each student, each course provider shall collect and, upon request, provide to TEA the following data: (i) complete legal name; (ii) driver's license number; (iii) date of birth; and (iv) date of course completion. Information derived from the study of the data will be used by TEA to evaluate the state's overall driving safety course and as a part of the total evaluation of individual courses. The data, as prescribed by TEA, shall be provided to the course provider within a 30-day period 24 months subsequent to approval of the driving safety course by TEA. The TEA shall, within 12 months of receiving the data, conduct an evaluation of the driving safety courses in general and of each approved course. The evaluation shall be conducted relative to the pre-course and post-course driving records of the graduates. (K) Innovative driving safety courses. Upon the written request of an applicant, the commissioner of education may approve the course structure of an innovative driving safety course which would not otherwise be in compliance with this chapter. The approval of an innovative driving safety course shall expire at the end of one year unless timely renewed. To renew the approval, an applicant must submit a renewal request and complete report at least 30 days prior to expiration. The renewal request and report must provide evidence acceptable to the commissioner of education of the accomplishment of the implementation plan and goals submitted for the previous year and include an acceptable updated plan of implementation and statement of goals for the following year. A written request must include a report that provides the following: (i) documentation of the developmental process; (ii) the actual presentation that would be used; (iii) justification demonstrating how the offered course would more completely satisfy the educational objectives of driving safety than a driving safety course that could be otherwise approved pursuant to this chapter; (iv) a specific plan of implementation and statement of goals for the immediate year following approval; (v) in the case of a renewal request, an evaluation of the effectiveness of the course for the previous approved period; and (vi) any other information requested by the commissioner of education to adequately review the presentation. (L) Driving safety courses delivered by technology. The commissioner of education may approve a driving safety course delivered by technology and waive any rules to accomplish this approval if: (i) the educational objectives, minimum course content, applicable areas of course management, examination, and student course evaluation requirements are met; (ii) the course materials are written by a TEA-licensed driving safety instructor or other individuals or organizations with recognized experience in writing instructional materials with input from a TEA-licensed driving safety instructor; (iii) with the exception of circumstances beyond the control of the course owner, the student has adequate access to a licensed instructor (on the average, within two minutes) throughout the course such that the flow of instructional information is not delayed; (iv) the equipment and course materials are available only through and at the approved driving safety school or classroom; and (v) there is sufficient evidence to demonstrate the security of the course and that it cannot be circumvented by the general public. (M) Requirements for authorship. The course materials shall be written by a TEA-licensed driving safety instructor or other individuals or organizations with recognized experience in writing instructional materials with input from a TEA-licensed driving safety instructor. (2) Instructor development courses. (A) Driving safety instructors shall successfully complete 36 clock hours (50 minutes of instruction in a 60-minute period) in the approved instructor development course for the driving safety course to be taught, under the supervision of a driving safety instructor trainer. Supervision is considered to have occurred when the instructor trainer is present and personally provides the 36 clock hours of training for driving safety instructors, excluding those clock hours approved by TEA staff that may be presented by a guest speaker or using films and other media that pertain directly to the concepts being taught. (B) Instruction records shall be maintained by the course provider and instructor trainer for each instructor trainee and shall be available for inspection by authorized division representatives at any time during the training period and/or for license investigation purposes. The instruction record shall include: the trainee's name, address, driver's license number, and other pertinent data; the name and instructor license number of the person conducting the training; and the dates of instruction, lesson time, and subject taught during each instruction period. Each record shall also include grades or other means of indicating the trainee's aptitude and development. Upon satisfactory completion of the training course, the instructor trainer conducting the training will certify one copy of the instruction record for attachment to the trainee's application for licensing, and one copy will be maintained in a permanent file at the course provider location. (C) All student instruction records submitted for the TEA-approved instructor development course shall be signed by the course provider. Original documents shall be submitted. (D) Driving safety instructor development courses may be offered at approved classroom facilities of a licensed school which is approved to offer the driving safety course being taught. The course shall be presented by a properly licensed instructor trainer. (E) Applicants shall complete 36 hours of training in the driving safety curriculum that shall be taught. Of the 36 hours, 24 shall cover techniques of instruction and in-depth familiarization with materials contained in the driving safety curriculum. The additional 12 hours shall consist of practical teaching with students and shall occur after the first 24 hours have been completed. (F) The driving safety course provider shall submit dates of instructor development course offerings for the 24-hour training that covers techniques of instruction and in-depth familiarization with the material contained in the driving safety curriculum, locations, class schedules, and scheduled instructor trainers' names and license numbers before the courses are offered. The 12-hour practical-teaching portion of the instructor development course shall be provided at properly licensed schools or classrooms approved to offer the course being provided. (b) Schools applying for approval of additional courses after the original approval has been granted shall submit the documents designated by the division director with the appropriate fee. Courses shall be approved before soliciting students, advertising, or conducting classes. An approval for an additional course shall not be granted if the school's compliance is in question at the time of application. (c) If an approved course is discontinued, the division director shall be notified within 72 hours of discontinuance and furnished with the names and addresses of any students who could not complete the course because it was discontinued. If the school does not make arrangements satisfactory to the students and the division director for the completion of the courses, the full amount of all tuition and fees paid by the students are due and refundable. If arrangements are not made satisfactory to the students and the division director, the refunds must be made no later than 30 days after the course was discontinued. Any course discontinued shall be removed from the list of approved courses. (d) If, upon review and consideration of an original, renewal, or amended application for course approval, the commissioner of education determines that the applicant does not meet the legal requirements, the commissioner shall notify the applicant, setting forth the reasons for denial in writing. (e) The commissioner of education may revoke approval of any course under any of the following circumstances. (1) A statement contained in the application for the course approval is found to be untrue. (2) The school has failed to maintain the faculty, facilities, equipment, or courses of study on the basis of which approval was issued. (3) The school and/or course provider has been found to be in violation of Texas Civil Statutes, Article 4413(29c), and/or this chapter. (4) The course has been found to be ineffective in carrying out the purpose of the Texas Driver and Traffic Safety Education Act. sec.176.121. Names and Advertising. (a) No driving safety school or course provider shall adopt, use, or conduct any business under a name that is like, or deceptively similar to, a name used by another licensed driving safety or driver education school without written consent of that school. Schools or extensions holding a name approved by the Texas Education Agency (TEA) as of August 31, 1995, may continue to use the name approved by TEA. No new license will be issued to a driving safety school or course provider after August 31, 1995, with a name like, or deceptively similar to, a name used by another licensed driving safety or driver education school. (b) A school license shall not contain more than one school name. Schools that hold approvals for more than one name as of August 31, 1995, shall provide written notice to TEA of the name that will be selected for the school at the renewal period subsequent to adoption of this rule. Use of names other than the approved school name may constitute a violation of this section. (c) A school shall not, by advertisement or otherwise, state or imply that a uniform certificate of course completion is guaranteed or assured to any student or individual who will take or complete any instruction or enroll or otherwise receive instruction in any driving safety school. (d) A driving safety school shall not advertise without including the school name exactly as it appears on the driving safety school license and school number and the course provider name exactly as it appears on the course provider license or course provider number. A driving safety school shall not advertise a multiple classroom location without including the school name exactly as it appears on the driving safety school license and school number and the course provider name exactly as it appears on the course provider license or course provider number. (e) The division director may require that a school furnish proof to TEA that substantiates any advertising claims made by the school. Failure to provide acceptable proof may require that a retraction of such advertising claims be published by the school in the same manner as the disputed advertisement. Continuation of such advertising shall constitute cause for suspension or revocation of the school license. (f) A school or course provider shall not design, manufacture, or supply to any court of the state any written materials that may be false, misleading, or deceptive. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600639 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 15, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 Chapter 176. Driver Training Schools Subchapter B. Minimum Standards for Operation of Texas Driver Training Schools 19 TAC sec.sec.176.10-176.20, 176.22, 176.23, 176.25-176.34 The Texas Education Agency (TEA) adopts the repeal of sec. sec.176.10-176.20, 176.22, 176.23, and 176.25-176.34, concerning driver training schools, without changes to the proposed text as published in the November 21, 1995, issue of the Texas Register (20 TexReg 9663). The sections establish minimum standards of operation for driver training schools, including definitions, requirements, and procedures related to: school and instructor licensure; exempt schools; school personnel; courses of instruction; school facilities and equipment; student complaints; records; application fees and other charges; and the uniform certificate of course completion. The repeals are necessary to comply with the sunset review process mandated by Senate Bill 1, 74th Texas Legislature, 1995. A new Chapter 176 is adopted in a separate submission. Under Senate Bill 1, a rule adopted by the State Board of Education (SBOE) normally does not take effect until the beginning of the school year that begins at least 90 days after the date the rule is adopted. However, the Bill provides that an SBOE rule may take effect earlier under certain circumstances. The SBOE, by an affirmative vote of at least two-thirds of the board members, adopts an earlier effective date of February 15, 1996. Because SBOE is adopting an earlier effective date of February 15, 1996, for new Chapter 176, Subchapter A and Subchapter B, the earlier effective date adopted for the repeal of current Chapter 176, Subchapter B, must be the same to avoid regulatory overlap. The repeals are adopted under the Texas Education Code, sec.7.102, which authorizes the State Board of Education to review specified TEA rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600637 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 15, 1996 Proposal publication date: November 21, 1995 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS Part XI. Board of Nurse Examiners Chapter 217. Licensure and Practice 22 TAC sec.217.20 The Board of Nurse Examiners adopts an amendment to sec.217.20, concerning Minimal Procedural Standards During Peer Review without changes to the proposed text as published in the December 8, 1995, issue of the Texas Register (20 TexReg 10358). During the 74th Legislative Session, House Bill 883 was passed which added vocational nurses to the Nursing Practice Act under Article 4525b, Peer Review. The language indicates that whenever peer review involves RNs and LVNs, the peer review committee shall include LVNs as members. Peer review was enacted as a part of the Nursing Practice Act in 1987 and institutions implemented peer review for both RNs and LVNs, although LVNs were not specified in the statute. This resulted in a lack of immunity from suit when peer review committees handled LVNs. The adopted amendment will cure the immunity problem so that committees who handle both RNs and LVNs can be free from suit/liability. There were no comments received regarding adoption of the amendment. The amendment is adopted under the Nursing Practice Act, (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 16, 1996. TRD-9600565 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: February 6, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6811 Part XVIII. Texas State Board of Podiatric Medical Examiners Chapter 371. Examinations 22 TAC sec.sec.371.1-371.6 The Texas State Board of Podiatric Medical Examiners adopts amendments to sec.sec.371.1-371.6, concerning Examinations, without changes to the proposed text as published in the December 12, 1995, issue of the Texas Register (20 TexReg 10470). The rules are being amended to bring terms in line with those used throughout the country and to include changes which were necessary to allow for the validation process. The amendments will update terms that are used throughout the country and make changes necessary to allow for the validation process. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Articles sec.4568(j) and sec.4590(e), which provide the Texas State Board of Podiatric Medical Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatric medicine, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatric medicine, and the enforcement of the law regulating the practice of podiatric medicine. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on January 12, 1996. TRD-9600461 Janie Alonzo Staff Services Officer I Texas State Board of Podiatric Medical Examiners Effective date: February 2, 1996 Proposal publication date: December 12, 1995 For further information, please call: (512) 305-7000 22 TAC sec.sec.371.7-371.15 The Texas State Board of Podiatric Medical Examiners adopts the repeal of sec.sec.371.7-371.15, concerning Examinations, without changes to the proposed text as published in the December 12, 1995, issue of the Texas Register (20 TexReg 10473). The rules are being repealed because the rules are very vague and are being updated by the Board to bring terms in line with those used throughout the country and to include changes which were necessary to allow for the validation process. The repeals will allow us to update terms that are used throughout the country and make changes necessary to allow for the validation process. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Articles sec.4568(j) and sec.4590(e), which provide the Texas State Board of Podiatric Medical Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatric medicine, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatric medicine, and the enforcement of the law regulating the practice of podiatric medicine. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on January 12, 1996. TRD-9600462 Janie Alonzo Staff Services Officer I Texas State Board of Podiatric Medical Examiners Effective date: February 2, 1996 Proposal publication date: December 12, 1995 For further information, please call: (512) 305-7000 The Texas State Board of Podiatric Medical Examiners adopts new sec.sec.371.7- 371.15, concerning Examinations, without changes to the proposed text as published in the December 12, 1995, issue of the Texas Register (20 TexReg 10473). The new rules are being written to bring terms in line with those used throughout the country and to include changes which were necessary to allow for the validation process. The rules define the process for administering the examination. No comments were received regarding adoption of the new rules. The new rules are adopted under Texas Civil Statutes, Articles sec.4568(j) and sec.4590(e), which provide the Texas State Board of Podiatric Medical Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatric medicine, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatric medicine, and the enforcement of the law regulating the practice of podiatric medicine. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on January 12, 1996. TRD-9600463 Janie Alonzo Staff Services Officer I Texas State Board of Podiatric Medical Examiners Effective date: February 2, 1996 Proposal publication date: December 12, 1995 For further information, please call: (512) 305-7000 Title 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter L. Motor Fuels Tax 34 TAC sec.3.193 The Comptroller of Public Accounts adopts an amendment to sec.3.193, concerning bad debt deductions, without changes to the proposed text as published in the November 3, 1995, issue of the Texas Register (20 TexReg 9148). House Bill 576, 74th Legislature, 1995, amended the Tax Code, Chapter 153, to allow the comptroller to collect a penalty equal to the amount of unpaid tax from persons who issue an insufficient check to a permitted distributor or permitted supplier for the payment of a debt that includes the motor fuel tax. The amendment prescribes procedures and records required of a permitted distributor or permitted supplier when notifying the comptroller of receiving an insufficient payment for tax-paid gasoline or diesel fuel. No comments were received regarding adoption of the amendment. The amendment is adopted 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.153.409. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600608 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 7, 1996 Proposal publication date: November 3, 1995 For further information, please call: (512) 463-4062 Subchapter O. State Sales and Use Tax 34 TAC sec.3.287 The Comptroller of Public Accounts adopts an amendment to sec.3.287, concerning exemption certificates, with changes to the proposed text as published in the October 31, 1995, issue of the Texas Register (20 TexReg 8988). The Tax Code, sec.151.155, was amended effective October 1, 1995, to state the value of taxable items if a purchaser who gave a valid exemption certificate makes a divergent use. The amendment states the value of tangible personal property and the value of a taxable service if there is a divergent use by a purchaser. Comments were received concerning the proposed rule from an Austin attorney. One comment concerned changing the wording in subsection (e) that defines the value of tangible personal property and the value of a taxable service if there is a divergent use by a purchaser. The suggested wording changes to subsection (e) would not implement the amended language in Tax Code, sec.151. 155, effective October 1, 1995. Another comment regarding subsection (h) expressed a concern over the name of the exemption certificate (Texas Sales and Use Tax Exemption Certification) that is adopted by reference. The rule is simply referencing the actual title of the exemption certificate to be adopted. The change to the title of the exemption certificate was done when it was printed with a front and back format with the Texas Resale Certificate in order to save the state printing and mailing costs. The current title of an exemption certificate helps to distinguish it from a resale certificate and is more descriptive because a purchaser is actually signing a certification statement that a sale is exempt. Additional comments on the proposed rule included changing previously existing wording in subsection (d)(1) so that all gross receipts of a retailer are only presumed to be taxable and a change to subsection (d)(5) to eliminate the requirement that a retailer be familiar with the exemptions available for the items the retailer sells. These changes are not adopted because the Tax Code has not been amended to require such changes. Another comment concerned the reference to 34 TAC sec.3.296 concerning Agriculture, Animal Life, Feed, Seed, Plants, and Fertilizer, in subsection (d) (5) of the proposed rule regarding the acceptance of a blanket exemption certificate received for agricultural exemptions. The comment pointed out that there are other situations in which a blanket exemption certificate may be accepted by a retailer. A statement regarding the acceptance of a blanket exemption certificate by a retailer has now been added to subsection (d)(5) of the adopted rule. This amendment is adopted 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 Senate Bill 640, 74th Legislature, 1995, amending the Tax Code, sec.151.155, effective October 1, 1995. sec.3.287. Exemption Certificates. (a) Definition. Exemption certificate-A document that, when properly executed, allows the tax-free purchase of an item that would otherwise be subject to tax. A purchaser claiming an exemption because the item purchased is for resale must issue a resale certificate to the seller. See sec.3.285 of this title (relating to Resale Certificate; Sales for Resale). There is no provision in the sales and use tax act for an exemption number or a tax exempt number to be issued or used in connection with an exemption certificate. (b) Who may issue an exemption certificate. An exemption certificate of the type described in this section may only be issued by one of the following: (1) an organization that has qualified for exemption under the Tax Code, sec.151.309 or sec.151.310. See sec.3.322 of this title (relating to Exempt Organizations); (2) a person purchasing an item that is exempt under the Tax Code, Chapter 151, Subchapter H. (c) Maquiladora exemption and direct payment permits. (1) People who make purchases using direct pay permits should refer to sec.3.288 of this title (relating to Direct Payment Procedures and Qualifications). (2) People who make purchases using maquiladora exemption permits should refer to sec.3.358 of this title (relating to Maquiladoras). (d) Acceptance of exemption certificate. (1) All gross receipts of a retailer are subject to sales or use tax unless a valid and properly completed exemption certificate is accepted by the seller. (2) A sale is exempt if the exemption certificate is accepted in good faith at the time of the transaction and the seller lacks actual knowledge that the claimed exemption is invalid. (3) A person who intentionally or knowingly makes, presents, uses, or alters an exemption certificate for the purpose of evading the Texas sales or use tax is guilty of a criminal offense. (A) If the tax evaded by the invalid certificate is less than $20, the offense is a Class C misdemeanor. (B) If the tax evaded by the invalid certificate is $20 or more but less than $200, the offense is a Class B misdemeanor. (C) If the tax evaded by the invalid certificate is $200 or more but less than $750, the offense is a Class A misdemeanor. (D) If the tax evaded by the invalid certificate is $750 or more but less than $20,000, the offense is a felony of the third degree. (E) If the tax evaded by the invalid certificate is $20,000 or more, the offense is a felony of the second degree. (4) The seller should obtain the properly executed exemption certificate at the time the transaction occurs. All certificates obtained on or after the date the comptroller's auditor actually begins work on the audit at the seller's place of business or on the seller's records after the entrance conference are subject to verification. All incomplete certificates will be disallowed regardless of when they were obtained. The seller has 60 days from the date written notice is received by the seller from the comptroller in which to deliver the certificates to the comptroller. Written notice shall be given by the comptroller upon the filing of a petition for redetermination or claim for refund. For the purposes of this section, written notice given by mail is presumed to have been received by the seller within three business days from the date of deposit in the custody of the United States Postal Service. The seller may overcome the presumption by submitting proof from the United States Postal Service or by other competent evidence showing a later delivery date. Any certificates delivered to the comptroller during the 60-day period will be subject to independent verification by the comptroller before any deductions will be allowed. Certificates delivered after the 60-day period will not be accepted and the deduction will not be granted. (5) The exemption certificate will be valid if the seller received it in good faith from a purchaser and if the certificate states valid qualifications for an exemption. A retailer must be familiar with the exemptions that are available for the items the retailer sells. A retailer may accept a blanket exemption certificate given by a purchaser who purchases only items that are exempt. For information on blanket exemption certificates received for agricultural exemptions, see sec.3.296 of this title (relating to Agriculture, Animal Life, Feed, Seed, Plants, and Fertilizer). (6) An exemption certificate is not acceptable when an exemption is claimed because tangible personal property is exported outside the United States. For proper documentation required for proof of export, see sec.3.323 of this title (relating to Imports and Exports) and sec.3.360 of this title (relating to Customs Brokers). (e) Improper use of items purchased under an exemption certificate. (1) When an item purchased under a valid exemption certificate is used in a taxable manner, whether the use is in Texas or outside the state, the purchaser is liable for payment of sales tax based on the value of the tangible personal property or taxable service for the period of time used. If the exemption certificate was invalid at the time of its issuance, the purchaser owes tax on the original purchase price. (2) The value of tangible personal property is the fair market rental value of the tangible personal property. The fair market rental value is the amount that a purchaser would pay on the open market to rent or lease the tangible personal property for use. If tangible personal property has no fair market rental value, sales tax is due based upon the original purchase price. (3) The value of a taxable service is the fair market value of the taxable service. The fair market value is the amount that a purchaser would pay on the open market to obtain that taxable service. If a taxable service has no fair market value, sales tax is due based upon the original purchase price. (4) At any time the person using tangible personal property or a taxable service purchased under a valid exemption certificate may stop paying tax on the value of tangible personal property or the value of a taxable service and instead pay sales tax on the original purchase price. When the person elects to pay sales tax on the purchase price, credit will not be allowed for taxes previously paid based on value. (5) Sales tax is not due when an item purchased under a valid exemption certificate is donated to an organization exempt from tax under the Tax Code, sec.151.309 or sec.151.310(a)(1) or (2), provided the purchaser does not use the donated tangible personal property or the donated taxable service. (6) Contractors using equipment purchased under a valid exemption certificate on both taxable and exempt projects must account for tax based upon the provisions in sec.3.291 of this title (relating to Contractors). (f) Content of an exemption certificate. An exemption certificate must show: (1) the name and address of the purchaser; (2) a description of the item to be purchased; (3) the reason the purchase is exempt from tax; (4) the signature of the purchaser and the date; and (5) the name and address of the seller. (g) Purchases of taxable items by agents of the Federal Deposit Insurance Corporation (FDIC) or the Resolution Trust Corporation (RTC). The FDIC or RTC may purchase items tax free for use in operating a property or business to which it has title. An exemption certificate may be issued by the FDIC or RTC or by persons acting as agents for the FDIC or RTC when purchasing items that are incorporated into or used on the property or business being managed. The certificate must state that the purchases are being made by or for the FDIC or RTC. The FDIC or RTC or persons managing property or a business for these corporations may issue an exemption certificate when: (1) the FDIC or RTC provides documentation to the person managing the property or business showing that title to the property or business being managed was transferred to the FDIC or RTC; and (2) the FDIC or RTC has entered into a written agreement with the person managing the property or business that designates that person as its agent and authorizes that person to make purchases on its behalf. The agreement must be in the person's files for review by the comptroller. It is not necessary to provide a copy of the agreement to suppliers. (h) Form of an exemption certificate. An exemption certificate must be in substantially the form of a Texas Sales and Use Tax Exemption Certification that the comptroller adopts by reference. Copies are available for inspection at the office of the Texas Register or may be obtained from the Comptroller of Public Accounts, Tax Policy Division, 111 West 6th Street, Austin, Texas 78701-2913. Copies may also be requested by calling our toll-free number 1-800-252-5555. In Austin, call 463-4600. (From a Telecommunication Device for the Deaf (TDD) only, call 1-800-248-4099 toll free. In Austin, the local TDD number is 463-4621). Figure: 34 TAC sec.3.287(h) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600610 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 7, 1996 Proposal publication date: October 31, 1995 For further information, please call: (512) 463-4028 34 TAC sec.3.354 The Comptroller of Public Accounts adopts an amendment to sec.3.354, concerning debt collection services, without changes to the proposed text as published in the October 31, 1995, issue of the Texas Register (20 TexReg 8991). The amendment reflects changes made by Senate Bill 640, 74th Legislature, 1995, to impose tax on the processing fee charged by a person collecting a dishonored check. The tax may be collected from the payor or payee of the check. Senate Bill 793, 74th Legislature, 1995, excludes fees paid to recover court-ordered child support or medical child support from taxable debt collection services. No comments were received regarding adoption of the amendment. The amendment is adopted 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.151.0036(c). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 17, 1996. TRD-9600609 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 7, 1996 Proposal publication date: October 31, 1995 For further information, please call: (512) 463-4062 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VI. Texas Department of Criminal Justice Chapter 152. Institutional Division Subchapter C. Maximum System Capacity of the Institutional Division 37 TAC sec.152.12 The Texas Department of Criminal Justice adopts an amendment to sec.152.12, concerning the maximum capacity of certain units of the Institutional Division with two changes to the proposed text as published in the November 24, 1995, issue of the Texas Register (20 TexReg 9835). The new subsection is adopted to comply with the orderly process under state law, Government Code, sec.sec.499.101 et seq., for increasing capacity of prison units or of the system as a whole. This process requires multiple levels of review and recommendation to ensure that an increase will still allow the staff to provide inmates with an enumerated list of services, functions, and staffing. The adopted version of the subsection is changed, first, simply by adding the Estelle Unit, which was inadvertently left out of the initial proposal language, to the list of affected facilities. The second change is in the definition of "close custody facility," changing "meal distribution" to "meal preparation." This reflects a revision in the scope of the proposal that was triggered by the institutional division's analysis of its ability to provide for all the enumerated list of services and functions; i.e., the staff concluded that additional kitchen space will be needed to serve the added inmate population. The staff of the institutional division finds and recommends that the additions to capacity by addition of a close custody facility at the following units may be made without limiting the ability of the division to operate the affected units with the additional capacity and provide for the matters listed in the Government Code, sec.499.102(a): Allred Unit, Wichita Falls; Clements Unit, Amarillo; Estelle Unit, Walker County; Connally Unit, Karnes County; Stiles Unit, Beaumont; Hughes Unit, Gatesville; Smith Unit, LaMesa; Lewis Unit, Woodville; and Wallace Unit, Mitchell County. Pursuant to Government Code, sec.499.104, these staff findings have been independently reviewed and concurred in by the following officials: Wayne Scott, Executive Director, Texas Department of Criminal Justice; Gary Johnson, Director, Institutional Division/Acting Director for Operations, Institutional Division, TDCJ; William C. McCray, Deputy Director for Administration, Texas Department of Criminal Justice; Carl Jeffries, Deputy Director for Program Services, Texas Department of Criminal Justice; Michael Warren, M.D., Deputy Director for Health Services, TDCJ; and Charles Smith, Assistant Director for Classification and Treatment, Institutional Division, TDCJ. Pursuant to Texas Government Code, sec.499.102(b), these staff findings have also been forwarded to the Legislative Budget Board for an estimate of the initial cost of implementing the increase and the increase in operating costs for the units for the five years immediately following the increase in capacity. The LBB's response is as follows: Figure 1: 37 TAC sec.152.12 (preamble) Pursuant to Government Code, sec.sec.499.105-499.107, these staff findings have also been reviewed and concurred in by the Texas Board of Criminal Justice at its January 12, 1996, meeting, and will be forwarded to Governor George W. Bush and then Attorney General Dan Morales for their review and recommendation. The effect of the amendment is to allow the Institutional Division to increase unit capacities at nine prison units by constructing permanent additions to the units as set out in Section XIII.D.5 of the Final Judgment. Section XIII.D.5 is referenced in the existing rule, sec.152.12(b), but that reference would only allow increases in the population at the units listed in the subsection. The amendment will allow increases primarily at newer, "prototype" facilities, in compliance with Chapter 499, Subchapter E, Government Code, and to the extent permitted by the Final Judgment, by adding a new subsection (i) to sec.152.12. Pursuant to Government Code, sec.499.013, inmate comments were solicited and received after publication of the proposal, and are summarized as follows. First, 90 inmates of the Connally Unit signed a statement titled "Objections to Increase in Population," which raised five categories of problems that will be increased by increasing the population: Infirmary-there are already significant delays in accessing health care, inadequate seating in the waiting area, and scheduling manipulations that occur to limit access; Law Library-there is already inadequate table space, electrical outlets for typewriters, and law books; Chow Hall-meals are already hurried, with 10 minutes or less to eat; Sanitation, Hygiene, and Communication Supplies-many supplies are unavailable or take weeks to receive, such as disinfectants, soap, toothpowder, toothbrushes, truckmail envelopes, sick-call requests, 1-60 forms, and grievance forms; Due Process Deficiency-counsel substitute caseloads are already so high that they take abbreviated statements, refuse to obtain documentary evidence, refuse to call witnesses, and refuse to play disciplinary hearing tapes for the inmates to listen. Second, four inmates from the Stiles Unit submitted versions of the same form letter, identifying the following nine problem areas that will be aggravated by adding population to the unit: inadequate time to eat meals, usually 10 to 12 minutes; food provided is less than the amount called for in the meal plan; chapel is not large enough to provide seating for all those wishing to attend services; inadequate number of law books; inadequate clothing and necessities to meet the nightly issue; commissaries constantly run out of items and have inadequate storage to keep up their inventory; long waits for scheduled sick-call and nurse appointments; long delays in response to maintenance requests such as light replacement and peeling paint; and an inadequate number of legal storage boxes. Finally, one other Stiles Unit inmate wrote to point out that the unit has already had one expansion in capacity and the following problem areas would be affected: educational facilities are already strained to capacity; the dining hall, kitchen, and laundry were designed for fewer inmates; and correctional staff will not be able to be familiar with additional inmates. The following inmates made comments: Chairman of the Community of Concerned Convicts at the Connally Unit, where 89 other inmates signed his statement; Thaddus L. Seter; Joe N. Mitchell; Johnny White; David Adams; and Jack S. Groves, Jr. The Board of Criminal Justice disagrees with the comments of inmates due to the detail provided by the agency staff regarding additional staff and equipment that will be provided to accommodate the population increases. In addition, dining time issues should not be affected by the increases because the proposed close custody facilities, under the newest proposal, will have their own capacity for preparation and distribution of meals to inmates in their cells, and no inmates from the new facility will be dining in the host unit's hall. The amendment is adopted under Chapter 499, Subchapter E, Government Code, and is further authorized by the Final Judgment in Ruiz v. Collins CN. H-78-987 (Southern District of Texas, Houston Division), which appeared in volume 17, Texas Register , page 8269 (November 27, 1992). The authority of the Board of Criminal Justice to adopt rules generally is found in Government Code, sec.492.013, and the statutory requirement for this procedure is in Government Code, sec. sec.499.101 et seq. sec.152.12. Methodology for Changing the Maximum System Population. (a)-(h) (No change.) (i) In this subsection, "close custody facility" refers to a 668-cell, two- bed-per-cell facility with its own areas for administration, recreation, meal preparation, and visitation. The institutional division shall undertake the review described by the Government Code, sec.499.102, to determine whether the division can increase the maximum capacity of the following units by the addition of a close custody facility: Allred Unit, Wichita Falls; Clements Unit, Amarillo; Connally Unit, Karnes County; Estelle Unit, Stiles Unit, Beaumont; Hughes Unit, Gatesville; Smith Unit, LaMesa; Lewis Unit, Woodville; and Wallace Unit, Mitchell County. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 12, 1996. TRD-9600491 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: February 2, 1996 Proposal publication date: November 24, 1995 For further information, please call: (512) 463-9693 Subchapter D. Other Rules 37 TAC sec.152.51 The Texas Department of Criminal Justice adopts new sec.152.51, concerning authorized witnesses to the execution of an inmate sentenced to death, without changes to the proposed text as published in the November 24, 1995, issue of the Texas Register (20 TexReg 9836). The new section is permitted by the Code of Criminal Procedure, Article 43. 20, and Attorney General's Letter Opinion Number 95-059 (September 26, 1995). The new section will specify those persons authorized to witness the execution of an inmate sentenced to death. No comments were received regarding adoption of the new section. The new section is adopted under the Government Code, sec.492.013, which grants general rulemaking authority to the Board. The new section is permitted by the Code of Criminal Procedure, Article 43.20, and Attorney General's Letter Opinion Number 95-059 (September 26, 1995). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 12, 1996. TRD-9600490 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: February 2, 1996 Proposal publication date: November 24, 1995 For further information, please call: (512) 463-9693