ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION PART I. Office of the Governor CHAPTER 3. Criminal Justice Division The Office of the Governor adopts new Chapter Three, 3.1, 3.5, 3.100, 3.105, 3.110, 3.115, 3.120, 3.125, 3.130, 3.135, 3.140, 3.150, 3.160, 3.165, 3.180, 3.185, 3.200, 3.205, 3.210, 3.215, 3.220, 3.225, 3.230, 3.235, 3.240, 3.250, 3.260, 3.280, 3.285, 3.290, 3.300, 3.305, 3.310, 3.315, 3.320, 3.325, 3.330, 3.335, 3.340, 3.350, 3.380, 3.385, 3.390, 3.400, 3.405, 3.410, 3.415, 3.420, 3.425, 3.430, 3.435, 3.440, 3.450, 3.480, 3.485, 3.500, 3.505, 3.510, 3.515, 3.520, 3.525, 3.530, 3.535, 3.540, 3.545, 3.550, 3.555, 3.560, 3.570, 3.580, 3.585, 3.600, 3.605, 3.610, 3.615, 3.620, 3.625, 3.630, 3.635, 3.640, 3.645, 3.655, 3.660, 3.680, 3.685, 3.690, 3.695, 3.700, 3.705, 3.710, 3.715, 3.720, 3.725, 3.730, 3.735, 3.740, 3.760, 3.770, 3.780, 3.785, 3.900, 3.905, 3.910, 3.915, 3.920, 3.925, 3.930, 3.935, 3.940, 3.945, 3.950, 3.955, 3.960, 3.970, 3.980, 3.985, 3.1000, 3.1005, 3.1010, 3.1015, 3.1020, 3.1025, 3.1030, 3.1035, 3.1050, 3.1060, 3.1080, 3.1085, 3.1090, 3.2000, 3.2005, 3.2010, 3.2015, 3.3045, 3.3050, 3.3055, 3.3060, 3.3065, 3.3070, 3.3075, 3.4000, 3.4005, 3.4010, 3.4015, 3.4020, 3.4025, 3.4030, 3.4035, 3.4040, 3.4045, 3.4050, 3.4055, 3.4060, 3.4065, 3.4070, 3.4075, 3.4080, 3.4085, 3.4090, 3.4095, 3.4100, 3.4105, 3.4110, 3.4115, 3.4120, 3.4125, 3.4130, 3.3435, 3.4140, 3.5000, 3.5005, 3.6000, 3.6005, 3.6010, 3.6015, 6.6020, 3.6025, 3.6030, 3.6035, 3.6040, 3.6045, 3.6050, 3.6055, 3.6060, 3.6065, 3.6070, 3.6075, 3.6080, 3.6085, 3.6090, 3.6095, 3.6100, 3.7000, 3.7005, 3.7010, 3.7015, 3.7020, 3.8000, 3.8100, 3.8105, 3.8110, 3.8115, 3.8120, 3.8200, 3.8205, 3.8210, 3.8215, 3.8220, 3.8300, 3.8305, 3.8310, 3.8315, and 3.8320, concerning the Criminal Justice Division without changes to the proposed text as published in the October 11, 1996, issue of the Texas Register (21 TexReg 9705). Subchapter A concerns Criminal Justice Division. Subchapter B concerns Fund- Specific Grant Policies. Subchapter C concerns General Eligibility Requirements. Subchapter D concerns Criminal Justice Division Advisory Boards. This Chapter clearly identifies, defines and provides other information on important policies, community planning, application submission guidelines, budget information, grant administration guidelines, program monitoring and auditing, funding sources, advisory boards, governing directives, and other relevant statutes. These new rules replace the existing Chapter Three which were contemporaneously repealed in the October 11, 1996 issue of the Texas Register. No comments were received regarding the proposal of these new rules. SUBCHAPTER A. Criminal Justice Division General Powers 1 TAC sec.3.1, sec.3.5 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc1] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618138 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 SUBCHAPTER B. Fund-Specific Grant Policies State Criminal Justice Planning (421) Fund 1 TAC sec.sec.3.100, 3.105, 3.110, 3.115, 3.120, 3.125, 3.130, 3.135, 3.140, 3.150, 3.160, 3.165, 3.180, 3.185 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc2] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618139 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Juvenile Justice and Delinquency Prevention Act Fund 1 TAC sec.sec.3.200, 3.205, 3.210, 3.215, 3.220, 3.225, 3.230, 3.235, 3.240, 3.250, 3.260, 3.280, 3.285, 3.290 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc3] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618140 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Title V Delinquency Prevention 1 TAC sec.sec.3.300, 3.305, 3.310, 3.315, 3.320, 3.325, 3.330, 3.335, 3.340, 3.350, 3.380, 3.385, 3.390 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc4] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618141 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Safe and Drug-Free Schools and Communities Act Fund 1 TAC sec.sec.3.400, 3.405, 3.410, 3.415, 3.420, 3.425, 3.430, 3.435, 3.440, 3.450, 3.480, 3.485 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc5] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618142 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Victims of Crime Act Fund 1 TAC sec.sec.3.500, 3.505, 3.510, 3.515, 3.520, 3.525, 3.530, 3.535, 3.540, 3.545, 3.550, 3.555, 3.560, 3.570, 3.580, 3.585 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc6] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618143 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Crime Stoppers Assistance Fund 1 TAC sec.sec.3.600, 3.605, 3.610, 3.615, 3.620, 3.625, 3.630, 3.635, 3.640, 3.645, 3.655, 3.660, 3.680, 3.685, 3.690, 3.695 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc7] which provides the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618144 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Texas Narcotics Control Program 1 TAC sec.sec.3.700, 3.705, 3.710, 3.715, 3.720, 3.725, 3.730, 3.735, 3.740, 3.760, 3.770, 3.780, 3.785 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc8] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618145 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Violence Against Women Act Fund 1 TAC sec.sec.3.900, 3.905, 3.910, 3.915, 3.920, 3.925, 3.930, 3.935, 3.940, 3.945, 3.950, 3.955, 3.960, 3.970, 3.980, 3.985 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc9] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618146 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Challenge Grants 1 TAC sec.sec.3.1000, 3.1005, 3.1010, 3.1015, 3.1020, 3.1025, 3.1030, 3.1035, 3.1050, 3.1060, 3.1080, 3.1085, 3.1090 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc10] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618147 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 SUBCHAPTER C. General Grant Program Policies General Eligibility Requirements 1 TAC sec.sec.3.2000, 3.2005, 3.2010, 3.2015 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc11] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618148 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 General Grant Budget Requirements 1 TAC sec.sec.3.3045, 3.3050, 3.3055, 3.3060, 3.3065, 3.3070, 3.3075 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc12] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618149 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Special Conditions and Required Documents 1 TAC sec.sec.3.4000, 3.4005, 3.4010, 3.4015, 3.4020, 3.4025, 3.4030, 3.4035, 3.4040, 3.4045, 3.4050, 3.4055, 3.4060, 3.4065, 3.4070, 3.4075, 3.4080, 3.4085, 3.4090, 3.4095, 3.4100, 3.4105, 3.4110, 3.4115, 3.4120, 3.4125, 3.4130, 3.4135, 3.4140 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc13] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618150 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Award and Grant Acceptance 1 TAC sec.3.5000, sec.3.5005 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc14] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618151 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Administering Grants 1 TAC sec.sec.3.6000, 3.6005, 3.6010, 3.6015, 3.6020, 3.6025, 3.6030, 3.6035, 3.6040, 3.6045, 3.6050, 3.6055, 3.6060, 3.6065, 3.6070, 3.6075, 3.6080, 3.6085, 3.6090, 3.6095, 3.6100 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc15] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618152 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Program Monitoring and Audits 1 TAC sec.sec.3.7000, 3.7005, 3.7010, 3.7015, 3.7020 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc16] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618153 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Governing Directives 1 TAC sec.3.8000 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc17] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618154 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 SUBCHAPTER D. Criminal Justice Division Advisory Boards Crime Stoppers Advisory Council 1 TAC sec.sec.3.8100, 3.8105, 3.8110, 3.8115, 3.8120 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc18] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618155 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Governor's Juvenile Justice Advisory Board 1 TAC sec.sec.3.8200, 3.8205, 3.8210, 3.8215, 3.8220 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc19] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618156 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 Governor's Drug Policy Advisory Board 1 TAC sec.sec.3.8300, 3.8305, 3.8310, 3.8315, 3.8320 The new rules are adopted under Vernon's Texas Statutes annotated Code of Criminal Procedure Article sec.sec.102.051-056[sc20] which provides the Office of the Governor, Criminal Justice Division the authority to promulgate rules consistent with the Code. No other statutes, articles or codes are affected by these new rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618157 Pete Wassdorf Deputy General Counsel, Office of the Governor Office of the Governor Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 475-2595 TITLE 25. HEALTH SERVICES PART II. Texas Department of Mental Health and Mental Retardation CHAPTER 401.System Administration SUBCHAPTER G.Community mental Health and Mental Retardation Centers 25 TAC sec.sec.401.453-401.460, 401.462, 401.464, 401.466 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.401.456 and sec.401.458 and amendments to sec.sec.401.453-401.455, 401.457, 401.459, 401.460, 401.462, 401.464, and 401.466, concerning community mental health and mental retardation centers. Sections 401.453-401.456, 401.458- 401.460, 401.464, and 401.466 are adopted with changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10492- 10495). Sections 401.457 and 401.462 are adopted without changes and will not be republished. The repeal of sec.sec.401.456 and 401.458 is contemporaneously adopted in this issue of the Texas Register. The new sections govern the initial and continuing plans of community centers in Texas. The amendments clarify language consistent with current practice. The adopted actions are interim steps in the department's plan to fully update the subchapter, and many comments were received that address issues outside the scope of this action and which will be taken up in a subsequent proposal of changes to this policy. On adoption, the following changes in terminology were made: "Community center" has been substituted for "local authority" as appropriate. "Local service area" has been revised to refer exclusively to local authorities. "Geographic service area" has been added to apply exclusively to community centers. In sec.401.453, the definition of "state authority," which is not used in the subchapter, was deleted. Definitions of "continuing plan," "current plan," "geographic service area," "initial plan," and "legally authorized representative" were added. The definition of "community center" was changed to "a community mental health and/or mental retardation center." In sec.401.454(a) language associated with the delegation of local authority was deleted. In sec.401.455(c)(3), the preface "If the center desires to receive funding from the department," was added. Subsection (f)(1) and (2) of sec.401.455 were deleted. Subsection (d) of sec.401.456 was deleted and language regarding the modification cycle of every three years on an assigned basis was included in sec.401.458(a). Subsections (c) and (d) of sec.401.458 have been revised on adoption to clarify intent. Subparagraphs (e)(1), (2), and (3) of the same section have been deleted. Section 401.459 has been revised, both the title and text, to reflect the range of contracting options available to a community center depending on whether or not it is designated as a local authority. In sec.401.460, language has been revised to indicate that the advocacy organization involvement in the departmental advisory committee that develops the guidelines for community center board training should be broadly representative of the interests of consumers and their families and legal representatives. In sec.401.464, legally authorized representatives were included as appropriate. Language has been added in subsections (c) and (d) of the same section that requires notifications to persons and legally authorized representatives to be communicated using an understandable language or method. Consumer, family, and advocacy organizations have been added to the distribution list for the rule in sec.401.466. Public hearings were held on October 28, 1996, and November 15, 1996. No oral or written testimony was received. Public comment was received from Advocacy, Inc., Austin; The Texas Council of Community Mental Health and Mental Retardation Centers, Austin; Hilgers & Watkins, Austin, on behalf of the Austin-Travis County Mental Health and Mental Retardation Center; and the Parent Association for Retarded of Texas, Austin. A commenter noted the confusion in the use of the terms "community center," which refers to an organization, and "local authority," which is a designation that may be applied to a community center or other entity. The commenter noted that the misapplication of these terms will become evident if TDMHMR approves the "regional authority" model currently being piloted. The department responds that to the extent possible in this interim version of the subchapter, the distinction has been made. A commenter noted that a community center must submit its plan and any modifications for approval, but there is no time line in the rules within which review and approval is to occur. The commenter noted that this could affect a center's ability to perform pending a lengthy approval process, and suggested that language be added to indicate that if the plan or modification is not rejected by the department within 30 days following submission, it will be deemed approved. The department responds that the suggestion will be addressed in a subsequent proposal, at which time it will be available for full public scrutiny and comment. A commenter noted that there is no method outlined in the rule for revoking the certificate of a center that fails to follow its approved plan or to comply with other legal requirements, nor is there a method presented by which a center can relinquish its certificate voluntarily. The department responds that the process that the commenter requests is needed and will be issued in a subsequent proposal for public scrutiny and comment. A commenter suggested deleting all references to "local authority," "local service area," "local match," and other terms except as necessary to indicate that TDMHMR may designate a new center as the local authority by entering into a performance contract in keeping with Chapter 401, Subchapter D, governing Contracts Management for Community-based Services. The department responds that the definition of "local service area" has been revised and the term is replaced with "geographic service area," as appropriate. The terms "local match" and "local authority" have been retained because they are used in the subchapter. Concerning sec.401.463, a commenter suggested that the definition of "community center" be changed to "a community mental health and/or mental retardation center." The department responds that the language has been revised. Concerning the same section, a commenter noted the discrepancy in references to the department and suggested uniformity based on the definition for "Department." The department responds that in the subsequent proposal of the fully revised subchapter consistency will be addressed. A commenter requested that a new term, "region," be added to the definitions section and be substituted in every case in which "local service area" is used to denote the geographic region of a community center's responsibilities. The department responds that the meaning of "local service area" has been limited to local authorities and that a new term, "geographic service area," is added to refer to community center's geographic area of responsibility. A commenter suggested deleting several terms in the definitions section which are not used in the subchapter, including "contract term," "core services," and "state operated community services." The department responds that "contract term" and "core services" were not included in the current proposal and the appropriateness of their inclusion will be addressed in subsequent rule action. The term "state operated community services" is used and therefore will not be deleted. With reference to sec.401.453, a commenter recommended adding a definition of "interdisciplinary team" identical to the definition contained in Texas Health and Safety Code, Section 581.003, and a definition of "legally authorized representative." The department responds that it is unnecessary to define "interdisciplinary team" because the term is not used in the subchapter. A definition of "legally authorized representative" has been added. A commenter noted that the term "local MHMR authority" had been abbreviated to "local authority" and urged the reinstatement of "MHMR." The department responds that in the context of this rule, it is not necessary to repeat "MHMR." With regard to sec.401.455(c)(3), a commenter noted "local match" is germane to receiving funding, not becoming a new center. The commenter suggested prefacing the provision with, "If the center desires to receive funding from the department." The department responds that language has been added. A commenter noted that sec.401.455(f)(1) and (2) are redundant and suggested alternative language in a new section (g): "The department may also designate the community center as the local MHMR authority or otherwise contract for services from the community center in accordance with the provisions of Chapter 401, Subchapter D of this title (relating to Contracts Management for Community- based Services)." The commenter also requested that a sentence be added to subsection (f) to describe the procedure to be followed if the initial plan is not approved. The department responds that language contained in (f)(1) and (2) has been deleted and the general language that the commenter suggested for new subsection (g) has been added to sec.401.459. Additional language addressing procedures to be followed when the plan is not approved will be proposed in a subsequent rule action. Concerning sec.401.456(b)(1)(A), a commenter recommended deleting the language requiring a community center to specify in its local plan the effect of its services on other components of the service delivery system, questioning how a community center could know this information. The department responds that in order for a community center to function effectively, it should be knowledgeable about its role in the community and its services in the local service array. Concerning sec.401.456(b)(1)(A)(ii), a commenter asked for clarification of the term "comparable or companion services available from other sources." The department responds that this means that the community center fully understands the other human services that are available locally, both those that may duplicate services the center ensures or provides, as well as those that are adjunctive to center services. Concerning the same subparagraph, a commenter questioned the nature of the services that individuals included in the estimate required in clause (iv) would receive, e.g., only MHMR services, Medicaid managed care services, and so forth. The department responds that the methodology by which the estimates will be formulated has not been developed. The commenter's question suggests that more specificity is needed in order for the service population to be accurately represented. This type of requirement must be deferred until the subsequent proposal of the revised rule. Concerning clause (viii) of the same subparagraph, a commenter noted that facility community services no longer exist and that funds have been transferred to state-operated community services (SOCS). The department responds that terminology has been updated to "SOCS." With reference to clause (xiv) of the same subparagraph, a commenter noted that the requirement for consumer, family, and advocacy involvement needs to be described in detail. The commenter suggested that a more meaningful process for assessing involvement would be to require consumers, family members, and advocates to submit documentation that they have been involved. The department responds that the suggestion is an excellent one and will be considered in the subsequent proposal of a fully revised rule. Two commenters suggested that the sentence structure of subsection (c) should be corrected. The department responds that the sentence has been corrected. Concerning sec.401.456(d), a commenter suggested that the two-year renewal requirement for plans is unduly bureaucratic and runs the risk of being neglected by both TDMHMR and centers, the consequences of which could be expensive and damaging. The commenter requested that the requirement be deleted. The department responds that the proposed language has been revised to require an update on a three-year cycle which will be assigned by the department. Submitting an initial plan for approval does not fully satisfy the intent of law or these rules concerning the accountability of the center and the department for the expenditure of general revenue in ways that are consistent with legislative intent. The intent of the provision is not to be bureaucratic or burdensome, but to ensure that the department and community centers are providing appropriate services to the priority population consistent with the rapidly changing healthcare environment. This is a minimal accountability and oversight activity and is not simply a pro forma exercise in paperwork. Regarding sec.401.458(a), a commenter noted that the language which would be deleted articulates elements which are vital for the community center to adhere to not only in their original development but also later in the planning process. The commenter expressed concern that the language deleted refers to the vision, mission, and goals of the department and center, core and other services, and involvement of advocates, consumers, and families in the planning process. The department refers the commenter to sec.401.456(b) and notes that after the approval of an initial plan that includes all of the elements noted by the commenter, the community center is responsible for notifying the department on an ongoing basis of any substantive changes in the initial plan. For community centers established prior to the effective date of the subchapter, the guidelines contained in Figure 1 require a description of services that includes a description of consumer, family, and advocacy involvement. The development and maintenance of services consistent with the department's vision, mission, and goals, and the development of core and other services should be evident in the narrative description required in Sections I and IV of The Community Mental Health and Mental Retardation Center as a Governmental Entity (Figure 1). Further, every three years, the community center must update its plan. The department acknowledges the commenter's concern and will consider it further in subsequent rule action. A commenter requested a definition or explanation of the term "affiliate" as it is used in sec.401.458(b). The department responds that "affiliate" means to join. A commenter suggested that sec.401.458(d) be modified to add language acknowledging the need for a center to modify its plan for something as high profile as a name change. The department responds that language has been revised to more fully explain the nature of the changes that would constitute a modification. With reference to sec.401.458(e)(1)-(3), a commenter stated that the criteria are a restatement of the criteria used for a "new" center plan and therefore make no sense for an existing center which is modifying its plan. The commenter suggested deleting the criteria or substituting more appropriate criteria. The department responds that the criteria have been deleted. A commenter suggested that language be added to address who approves the modified plan after review. The commenter suggested specific language. The department responds that the section has been revised to clarify this issue. Concerning sec.401.460, a commenter suggested that "families and/or legally authorized representatives of persons with MH and MR" should be added to the membership of the departmental advisory committee that develops the guidelines for community center board training. The commenter also recommended that the guidelines be made an exhibit to the rule. The department responds that the language has been changed to indicate that advocacy organization involvement should be broadly representative of the interests of families and legally authorized representatives as well consumers. The guidelines cannot be added to the adoption because they were not proposed, but consideration will be given to including the guidelines in the subsequent proposal of the subchapter. Also concerning sec.401.460, a commenter suggested that personal property is not discussed and reference to personal property should be deleted from subsection (f). The department responds that this subsection of the rule was not proposed for public comment. The comment will be considered when the formulation of a subsequent proposal of the subchapter occurs. A commenter suggested that sec.401.461 should be deleted because compliance with the Civil Rights Act and the Americans with Disabilities Act is a federal mandate that exists independent of the subchapter. The commenter also noted that any references to "entities with which they [centers] contract" belongs in the departmental rule governing contracts. The department responds that the section was not proposed for comment and the commenter's concern falls outside the scope of this rule action. A commenter suggested that a new section be added to address issues of dissolution and decertification of community centers. The commenter noted that any threat of decertification/involuntary dissolution would require a mitigatory process of notices, responses, informal mediations, plans of correction, etc. The commenter recommended that the rule should provide a process by which the Texas MHMR Board receives an objective recommendation derived through a due- process guaranteed administrative hearing held for a proposed decertification/involuntary dissolution. These hearings could be provided in the context of a contested case subject to the department rules contained in Chapter 403, Subchapter O (relating to Administrative Hearings in Contested Cases), or through the State Office of Administrative Hearings. The commenter acknowledged the possible necessity for legislative assistance, and recommended specific language to be used in the interim. The department acknowledges the commenter's concern and will further consider it in the subsequent reformulation of a proposal of the rule. With regard to sec.401.464, a commenter suggested that legally authorized representatives should be included throughout the section. The department concurs and has altered language as appropriate. Concerning sec.401.464, a commenter noted that any consumer receiving services partially or fully funded by Medicaid can legally bypass the center's internal grievance/appeal mechanism and access a Medicaid fair hearing. The commenter requested that the rule acknowledge and describe how the Medicaid fair hearing will be incorporated with other internal processes. The department refers the commenter to sec.401.464(i)(2), which clearly states that the internal appeal process does not preclude a person's right to reviews, appeals, or other actions that accompany services otherwise funded, including Medicaid. The department nevertheless concurs that this important distinction could be further explicated but notes that it cannot be adequately addressed with the adoption of language that has not had benefit of public scrutiny and comment. The issue will be considered in the formulation of the proposal of changes to the subchapter. Concerning sec.401.464(c) and (d), a commenter noted that whenever notification is provided, the rule should stipulate that it must be in a language and/or method understood by the individual. The department responds that language has been added as requested. A commenter also noted that the appeals process specifically addresses instances in which services are denied, terminated or reduced, but does not describe what happens when an individual requests a specific service (in addition or as a substitute for what is already proposed or received) and is denied. The department responds that subsection (c) requires the review process (or appeal process) to include consumer concerns and dissatisfaction. With reference to subsection (d) of sec.401.464, a commenter noted that paragraph (1) indicates that a person who is not in the priority population is not eligible for services. The commenter agreed that individuals most in need should be served first, but noted that others also need assistance. The department responds that the legislated focus of services funded by the general revenue is on the priority population. Concerning paragraph (2) of the same subsection, a commenter noted that the language indicates that a person's services/supports and follow-along can just be terminated. The commenter asked for clarification of the term "if appropriate" and suggested that criteria for termination and its legality should be addressed. The department responds that system-wide criteria for termination of services or follow-along have not been developed. Further consideration will be given to the comment at the time that the subchapter is reformulated for proposal. A commenter requested that an exhibit section be added to the subchapter. The department responds that an exhibit section is not required. Concerning sec.401.466, a commenter suggested adding the commissioner and the advocacy list to the distribution. The department responds that the commissioner is the board's agent for the issuance of rules and therefore is the sender, not the recipient, of that which is promulgated. Consumer, family, and advocacy organizations have been added to the list. With regard to Section II of The Community Mental Health and Mental Retardation Center as a Governmental Entity (Figure 1), a commenter praised language that acknowledged that treatment of persons in their own communities may not always be appropriate and feasible. The department acknowledges the commenter's remark. The sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.401.453.Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Community center - A community mental health and/or mental retardation center established under Texas Health and Safety Code, Title 7, Chapter 534, Subchapter A. Continuing plan - An update of the initial plan. Current plan - The initial or continuing plan, whichever is more current. Facility - Any state hospital, state school, or state center. Geographic service area - A geographic area composed of one or more Texas counties delimiting the population which may receive services from a community center. Initial plan - The plan developed at the time a community center is created. Legally authorized representative - A parent or legal guardian if the person is a minor, or a legal guardian if the person has been adjudicated incompetent to manage his/her personal affairs. Local match - Required local financial participation which represents, on a contract-specific basis, the amount of local funding committed to complement department funding for the contracted services, expressed in the contract as a dollar amount or as a funding percentage of the state general revenue contract for services funds. Local authority - An entity to which the Texas Board of Mental Health and Mental Retardation delegates its authority and responsibility within a specified region for the planning, policy development, coordination, resource development and allocation, and for supervising and ensuring the provision of mental health services to persons with mental illness and/or mental retardation services to persons with mental retardation in one or more local service areas. Local service area - A geographic area composed of one or more Texas counties delimiting the population which may receive services from a local authority. Priority population - Those groups of persons with mental illness or mental retardation identified in the department's current strategic plan, and operationally defined in the performance contract, as being most in need of mental health or mental retardation services. State-operated community services (SOCS) - Community residential and nonresidential programs under the jurisdiction of the Texas Department of Mental Health and Mental Retardation. sec.401.454.Philosophy. (a) The department is committed to the provision of accessible and appropriate services in the community to persons in the priority population. Furthermore, the department recognizes the importance of local control vested in a community center. Therefore, the department supports and encourages the creation and expansion of community centers. The following principles are important in the development of local services. (1)-(5) (No change.) (b) (No change.) (c) The advantage for a local agency in forming a new community center or affiliating with an existing community center is the greater degree of local ownership and control of the services provided. The department's intent is to encourage and promote the development of new community centers. (d) A community center must be established pursuant to Texas Health and Safety Code, Title 7, Chapter 534, Subchapter A. A specific requirement of that statute requires the approval by the department of a plan to deliver mental health or mental retardation services. The elements of such plan and the procedure for submitting and approving the plan are described in sec.401.456 of this title (relating to Approval of Initial and Continuing Plans). sec.401.455.Process to Establish a New Community Center. (a) The local agency which desires to establish a new community center must submit a letter of intent to the commissioner outlining the proposed center's service area, governing structure, and other information pertinent to the formation of the proposed center. (b) (No change.) (c) The commissioner shall designate staff who are knowledgeable of community center operations to review the letter of intent using the following criteria: (1) The rationale for creating a community center must clearly support the benefits of a new center over the expansion of an existing center. (2) The population of the proposed service area of a new community center shall be greater than 100,000. (3) If the center desires to receive funding from the department, the department requirement for local match shall be met. (4) The intent of the community center shall be to serve both persons with mental illness as well as persons with mental retardation, even though the center may initially not be able to do so. (d) (No change.) (e) If the commissioner approves the letter of intent, the local agency follows the provisions of this subchapter pertaining to the appointment of a local board of trustees, the development of an initial written plan, and the submission of the initial written plan to the commissioner for approval by the Texas MHMR Board. (f) If the Texas MHMR Board approves the initial plan, then the department shall issue a certificate recognizing its status as a community center. sec.401.456.Approval of Initial and Continuing Plans. (a) Purpose. A community center may operate for the purposes defined in the center's current plan. (b) Submission of plans. (1) Initial plan. Boards of trustees of community centers established after the effective date of this subchapter shall submit to the commissioner an initial plan to provide effective mental health and mental retardation services to the residents of the proposed geographic service area. The initial written plan shall include the following elements: (A) a comprehensive service plan, which describes: (i) the vision, mission, and the short and long-range goals of the community center, consistent with the department's vision, mission, and goals; (ii) the financial, physical, and personnel resources of the proposed geographic service area, including comparable or companion services available from other sources; (iii) systematically derived estimate of the total number of people in need of mental health and mental retardation services in the proposed geographic service area, including the estimates of the number of people in the mental health and mental retardation priority populations; (iv) the estimate of the number of people in the proposed geographic service area that will be provided services which includes an estimate of the number of people in the priority population that will be served; (v) how core and other services are to be provided either directly or by contracting with other entities; (vi) the effect of these services on other components of the service delivery system, including state hospitals, state schools, state centers, and other community centers; (vii) the projected annual cost of delivering specialized services, including specific estimates for the mental health and mental retardation priority populations; (viii) proposed transfer of funds from state-operated community services; (xiv) the involvement of local advocacy organizations, persons to be served, and their families in planning and delivering services; and (x) the extent of involvement in the planning process and in the delivery of services by entities contracting with the community center; (B) an organizational plan, including: (i) organizational structure of the board of trustees and the community center; (ii) board of trustees membership; (iii) a copy of the bylaws of the board of trustees; and (iv) a copy of the contract entered into by the organizing bodies as required by Texas Health and Safety Code, Title 7, sec.534.003; (C) a financial plan, including a proposed performance contract with attachments and budget on forms to be supplied by the department; and (D) the board of trustee's assurance that it understands and will enforce compliance with applicable state and federal laws, rules, standards, and regulations. (2) Continuing plan. Boards of trustees of community centers established prior to the effective date of this subchapter shall submit to the commissioner a continuing plan in the format shown in The Community MHMR Center as a Governmental Entity. (Figure 1: 25 TAC 401.456(b)(2)). (c) Board approval of plan. A community center may perform and operate only for the purposes and functions defined in the center's current plan which has been approved by the Texas MHMR Board. sec.401.458.Modifying a Community Center's Plan. (a) The current plan should be updated as frequently as necessary to reflect material changes in organization or function of the community center. If there are no material changes in organization or function, the plan will be updated in an assigned three-year cycle. Without regard to the source of funding, modifications to a community center's current plan must be submitted to the commissioner for approval when there is a change in the community center's: (1) functions; (2) sponsoring agencies; or (3) geographic service area. (b) When a local agency wants to affiliate with an existing community center and the existing center agrees, the board of trustees of the existing center will submit to the commissioner for approval a modification of the center's current plan to reflect such affiliation, including any expansion of the center's proposed geographic service area. Included with such submission shall be letters of intent from the present local agency(ies) of the center and the proposed affiliated local agency. If the proposed local agency is not a county or counties to be served by the affiliation, then the letters of intent must be accompanied by a letter of endorsement from the appropriate county judge or judges. (c) When a local agency wants to terminate its organizational combination with another local agency and end its affiliation with an existing community center, the appointing authorities must terminate the original agreement and enter into a new agreement, and the board of trustees of the existing center will submit to the commissioner for approval a modification of the center's current plan to reflect the termination of such affiliation, including any change of the center's geographic service area, and a copy of the new agreement. Included with such submission shall be letters of intent from the local agency which is terminating its relationship with the center. (d) When an existing center wants to expand or reduce its functions or geographic, or otherwise substantially amend its functions or method of operations, such as changing the population served, the services provided, or its name, the board of trustees of the existing center will submit to the commissioner for approval a modification of the center's current plan to reflect such changes. Included with such submission shall be letters of endorsement of such changes from the center's local agency(ies). (e) The commissioner shall designate staff to review the requested modification of the current plan. sec.401.459.Contracting for Services. The department may designate the community center as the local authority or otherwise contract for services from the community center in accordance with the provisions of Chapter 401, Subchapter D of this title (relating to Contracts Management for Community-based Services), and as required or allowed by state law, including the appropriations act. sec.401.460.Standards of Administration for Boards of Trustees of Community Centers. (a)-(l) (No change) (m) Guidelines for the training shall be developed by an advisory committee for the department which includes representatives of advocacy organizations broadly representative of the interests of persons with mental illness or mental retardation and their families and/or legally authorized representatives, and representatives of boards of trustees. The guidelines are available from TXMHMR, Office of Policy Development, P.O. Box 12668, Austin, Texas 78711-2668. sec.401.464.Notification and Appeals Process. (a) The TXMHMR service system is dedicated to providing mental health and mental retardation services/supports which are viewed as satisfactory by persons receiving those services/supports and their legally authorized representatives. Therefore, local authorities and their contractors shall take steps to assure that these persons: (1)-(3) (No change.) (b) (No change.) (c) At the time of admission into services and on an annual basis thereafter, the local authority and its contractors shall provide to persons who receive services/supports and their legally authorized representatives written notification in a language and/or method understood by the individual of the local authority or its contractor's policy for addressing concerns or dissatisfaction with services/supports. The notification shall explain: (1) an easily understood process for persons and legally authorized representatives to request a review of their concerns or dissatisfaction by the local authority or its contractor, whichever is appropriate; (2)-(4) (No change.) (d) Local authorities and their contractors shall notify persons and legally authorized representatives in writing in a language and/or method understood by the individual of the following decisions and of the process to appeal by requesting a review of those decisions: (1) a decision to deny the person services/supports at the conclusion of a local authority's procedure which determines whether the person meets the criteria for the priority population; and (2) a decision to terminate services/supports and follow-along from the local authority or its contractor, if appropriate. (e) The written notification referred to in subsection (d) of this section must: (1) be given or mailed to the person and the legally authorized representative within ten working days of the date the decision was made; (2) state the reason for the decision; (3) explain that the person and legally authorized representative may contact either the local authority or its contractor, whichever is appropriate, within 30 days of receipt of notification if dissatisfied with the decision and request that the decision be reviewed in accordance with subsection (g) of this section; and (4) include name(s), phone number(s) and address(es) of one or more accessible staff to contact during office hours. (f) If a person or legally authorized representative believes that the local authority or its contractor has made a decision to involuntarily reduce services by changing the amount, duration, or scope of services/supports provided and is dissatisfied with that decision, then the person may request in writing that the decision be reviewed in accordance with subsection (g) of this section. (g) The review by the local authority or its contractor shall: (1) begin within ten working days of receipt of the request for a review and be completed within ten working days of the time it begins unless an extension is granted by the CEO of the local authority or its contractor, whichever is appropriate; (2)-(6) (No change.) (h) Following a review, either the local authority or its contractor, whichever is appropriate, shall explain to the person and legally authorized representative in writing and also in person or by telephone, if requested, the action it will take or, if no action will be taken, why it will not change the decision or believes such action would not be in the person's best interest. This is the final step in the review process. (i) The notification and review process described in this section: (1) is applicable only to services/supports funded by TXMHMR and provided or contracted for by its local authorities; (2) does not preclude a person or legally authorized representative's right to reviews, appeals, or other actions that accompany other funds administered through a local authority or its contractors, or to other appeals processes provided for by other state and federal laws, e.g., Texas Health and Safety Code, Title 7, Chapter 593 (Persons with Mental Retardation Act); 42 U.S.C. sec.1396 (Medicaid statute); and Texas Human Resources Code, Chapter 73 (Texas Administrative Code, Title 25, Chapter 621), Early Childhood Intervention programs as funded by the Texas Interagency Council for Early Childhood Intervention. sec.401.466.Distribution. This subchapter shall be distributed to members of the Texas MHMR Board; assistant commissioner, medical director, and executive, management, and program staff of Central Office; superintendents/directors of state facilities; chairpersons, boards of trustees, and executive directors of community mental health and mental retardation centers and state- operated community services; and consumer, family and advocacy organizations. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618209 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: January 3, 1997 Proposal publication date: October 25, 1996 For further information, please call: (512) 206-4516 25 TAC sec.401.456, sec.401.458 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeal of sec.401.456 and sec.401.458, concerning community mental health and mental retardation centers without changes to the proposal as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10495). New sections which would replace these are contemporaneously adopted in this issue of the Texas Register. A public hearing was held on October 28, 1996, and November 15, 1996. No oral or written testimony was received. No public comment was received on the proposed repeals. The repeals are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618210 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: January 3, 1997 Proposal publication date: October 25, 1996 For further information, please call: (512) 206-4516 CHAPTER 408.Standards and Quality Assurance SUBCHAPTER B.Mental Health Community Services Standards 25 TAC sec.408.21 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeal of sec.408.21, concerning mental health community services standards, without changes to the proposed text published in the October 25, 1996, issue of the Texas Register (21 TexReg 10497). The repeal is adopted contemporaneously with the adoption of new sec.408.21 in this issue of the Texas Register. The repeal enables the adoption of revised mental health community services standards. A public hearing to accept testimony concerning the proposal was held on November 18, 1996, at the central office of TDMHMR in Austin. No public comments were received concerning the proposed repeal. The repeal is adopted under the Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers; and sec.534.052, which gives the board rulemaking authority for community-based mental health and mental retardation services provided by community centers and other contract providers. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618212 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: January 3, 1997 Proposal publication date: October 25, 1996 For further information, please call: (512) 206-4516 25 TAC sec.408.21 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.408.21, concerning mental health community services standards, with changes to the proposed text as published in the October 25, 1996, issue of the Texas Register (21 TexReg 10497-10498). The new section is adopted contemporaneously with the repeal of existing sec.408.21 in this issue of the Texas Register. The new figure contained in sec.408.21, the 1997 Mental Health Community Services Standards, replaces the existing 1995 standards. The purpose of the mental health standards is to ensure that consumers of community-based mental health services in Texas receive high quality services and that outcomes are used to evaluate services. The standards are used to determine whether community-based services purchased by TDMHMR are being delivered as required under contract. On adoption, the section was revised to more accurately reflect the content of the figure. The introduction to the new figure was changed to correct two references from "1996" to "1997" and to more clearly describe the entities responsible for ensuring compliance with the new standards. In service definitions, the definition of "family education" was revised and its designation as a core service was deleted. Language was added to the section to clarify that the mental health authority is responsible for ensuring the provision of all services defined, not just those explicitly listed in the service definitions as authority responsibilities. Titles of standards in Chapter 1, Outcome Standards, were changed to delete references to satisfaction. The title of Standard 1.8.O was revised. Standard 1.9.O was changed to explicitly include support as a category of services for which family satisfaction would be a desired outcome. Standard 2.8.R has been revised to reflect the MHA's oversight responsibility regarding suicide/homicide precautions. In Chapter 3, Rights, a longstanding standard concerning compliance with Chapter 410, Subchapter A, governing public responsibility committees, was reinstated for community centers with public responsibility committees (Standard 3.3.P), with renumbering of subsequent standards. Standards 3.2.P and 3.4.P have been modified to add language relating to compliance. Standards 6.2.P, 6.3.P, and 6.4.P were revised to clarify several training requirements. Standard 6.6.P was revised to give examples of state boards that require peer review activities. Standard 7.4.P has been clarified. Standard 7.6.P has been revised. Standard 8.9.P is revised to differentiate preliminary written plans from comprehensive treatment plans. Language concerning prescribing and providing medications was added to Standard 8.15.P. A definition of "data driven" was added to the glossary. The definition of "qualified mental health professional- community services" was changed to specify that the required supervision of the staff person so designated refers to supervision of clinical functions, and to clearly designate the types of professionals who are qualified to provide supervision to QMHPs. The definition was also revised to include registered nurses as individuals who can provide QMHP services. The definition of "support to individual services" was deleted as unnecessary and confusing. The definition of "Texas Department of Mental Health and Mental Retardation (TDMHMR)" was deleted. A public hearing to accept testimony concerning the proposal was held on Monday, November 18, 1996, at the central office of TDMHMR in Austin. The following individuals provided oral and/or written testimony: Mike Collier, Advocacy, Inc., and the Deaf Task Force; Charles Holmes, president, Sabine Valley Center public responsibility committee, Longview; Carolyn Karbowski, family member, Hitchcock; Mike Manor, director, Adult Mental Health Services, Austin-Travis County MHMR, Austin; Carol Schaper, president, Collin County Alliance for the Mentally Ill, Plano; and a TDMHMR staff person. Additional written comments were received from Advocacy, Inc., Austin; M. Anderson, Marshall; Andrews Center, Tyler; Camino Real Community MHMR Services; Central Texas MHMR, Brownwood; Louise Gould; Leesa Hanka, Wharton; Nueces County MHMR; the Joint Commission on Accreditation of Healthcare Organizations, Oakbrook Terrace, Illinois; Randolph Wilhoit, College Station; two representatives of the Sabine Valley Center, Longview; and Tarrant County MHMR Services, Ft. Worth. A commenter requested clarification concerning the effective date of the subchapter. The department responds that the subchapter takes effect 20 days following submission of the adopted rules to the Texas Register, which is anticipated to be January 3, 1997. A commenter protested the fact that families were not directly sent copies of the proposed standards by TEXAMI or by other means. The department responds that citizens may request placement on mailing lists of individuals interested in commenting on departmental policies by contacting the TDMHMR Office of Policy Development, PO Box 12668, Austin, Texas 78711-2668, or by calling Sheila Wilkins at 512/206-5283. A commenter suggested that full accreditation under appropriate standards of the Joint Commission on Accreditation of Healthcare Organizations be accepted as evidence of compliance with Chapter 408, Subchapter B. The commenter noted that this would further maintain consistency with current Texas law that allows for acceptance of Joint Commission accreditation in lieu of state licensure survey for acute care and psychiatric hospitals licensed by the Texas Department of Health, TDMHMR (Chapter 241) and approved nonprofit health corporations certified by the Texas Department of Insurance. The commenter noted that the department had recently updated Chapter 405, Subchapter F to be consistent with Joint Commission standards for restraint and seclusion and suggested that further partnership be explored with reference to community mental health standards. The department responds that will further consider the commenter's suggestions and that if a determination is made to proceed as the commenter recommends, this proposed change in state policy would require publication in the Texas Register for public scrutiny and comment. A commenter resubmitted comments provided prior to proposal of the rule. Many of the commenter's recommendations were included in the proposal. Only recommendations that were not incorporated prior to proposal will be discussed. A commenter suggested that the standards document is fragmented and should be tied to the department's vision and mission statements. The same commenter noted that the "Rehabilitation Services for Persons with Mental Illness-Medicaid Reimbursement Provider Manual" is a superior document. The department responds that it is in general agreement that it is helpful to relate various components of its policy base, and notes the commenter's preference. A commenter noted that a number of specific recommendations made prior to proposal concerning providing services to consumers who are deaf were not included in the standards. Another commenter representing the same organization also called for more specificity in the standards with respect to providing services to people who are deaf. The department responds that detailed information concerning the assessment of service availability and accessibility, and its appropriateness for consumers who are deaf, is contained in material that surveyors use to review community programs. This information is available to the public at large and will soon be available through Internet. These working interpretive guidelines address details concerning provision of services at the level the commenter suggests. The department provides funding for services to a number of people with different needs. Various broad standards require appropriate accommodations; specific types of accommodations for specific needs are discussed in working interpretive guidelines which are continuously updated. A reference to the interpretive guidelines has been added to the introduction to the standards. A commenter referenced the interpretive guidelines and recommended that the document should be adopted by reference in rule form and made available to the public to assist them in advocating for services and understanding rights. The department notes that a reference has been added and that the guidelines are available in ongoing draft form. The department is also adding the guidelines to a widely accessible Internet Web site. A commenter noted that reference to the standards as "1996 Standards" is incorrect. The department has corrected two references. Two commenters stated that the introduction was unclear with regard to who is responsible for ensuring compliance with the standards. The department responds that language has been revised to address the commenters' concerns. With reference to service definitions, a commenter requested that the definition of "assessment" take into account the urgency of the need for services and the preferences of the individual seeking services. The department responds that reference has been made to these elements of assessment. Also with reference to service definitions, two commenters noted that family education is not a core service but should be noted as a best practice. The department concurs and has deleted the designation as a core service; family education has not been identified by the department as a best practice at this time. Another commenter suggested clarifying language for the definition of "family education." The department concurs and language has been revised as requested. A commenter requested that a definition of "family support and respite" also be included in the listing of authority responsibilities. Another commenter requested clarification concerning the designation of "family education" as an authority function and "family training" as a provider function. The department responds that services included as authority responsibilities in the standards must be provided by the authority and cannot be contracted. Family support and respite, as well as family training, can be contracted and are therefore designated as provider responsibilities only. Language has been added to the introduction to service definitions to clarify that MHAs are responsible for ensuring the provision of all defined services, and that the services designated as authority responsibilities include only those services which the MHA must provide and cannot contract. A commenter requested clarification of the use of the term "case coordination" in relation to authority and provider functions, specifically supported housing and ACT. The department responds that the service definitions are sufficiently clear. A commenter requested that the term "outreach" not be used and that the legal definition of "support and respite activities" be used instead. The department responds that the term "outreach" is the term of choice. A commenter questioned why rehabilitative services are not considered an authority responsibility. The department responds that rehabilitative services can be contracted out and are therefore considered a provider responsibility. Also concerning service definitions, a commenter noted that family training is designated as a core service and suggested that it should be designated as a best practice instead. The department responds that family training is an element of family support and respite, which is a core service. With regard to the service definition of acute day treatment for adults and children, a commenter questioned the inclusion of the ten-day limitation on services for adults. The commenter noted that adding such an indicator, in light of other requirements with reference to length of stay, is unnecessary. The department responds that the limitation is consistent with its general approach to service delivery and utilization management. A commenter posed a number of questions related to psychosocial rehabilitation and its relationship to skills training. The department responds that the differences between psychosocial rehabilitation and skill training are not necessarily as pronounced as the commenter states. The law clearly states that psychosocial rehabilitation is a core service. With respect to socialization being a Medicaid-billable skills training activity, the department responds that socialization in the context of skills training is billable. In response to the commenter's concern that differences in definitions in the community standards and in Medicaid rules cause undue confusion, the department notes that a crosswalk will be provided as part of the regional training conferences on standards. A commenter questioned whether providers must offer all of the following subcomponents of skills training in order to meet the department's core requirements: work-related, educational, socialization, and symptom management. The department response that all subcomponents must be available. A commenter recommended that the listing of screening and crisis services reflected in the rule that is being repealed should be reinstated. commenter noted a number of specific recommendations, such as the minimum of crisis services that must be provided, with definitions, the maximum time a person in crisis can wait before screening, and criteria for conditions which must be met during detention by the mental health authority. The department responds that the current crisis system is being reengineered to more effectively provide for the needs of TDMHMR consumers and to better direct involved employees. A commenter requested that the outcome standards be distributed throughout the standards document according to the topics and programs to which they relate. The department responds that this approach has been found to be redundant and that the consolidation of the outcome standards simplifies the description of expectations with respect to outcomes. A commenter noted the deletion of a number of outcome standards relating to demonstration of clinical improvement. The commenter noted that consumer/family satisfaction should not be the only outcome measures by which adequacy of services is measured. The department concurs and notes that empirical assessments are required through the mandated use of the uniform assessment tool and performance contract measures. Mental health authorities are not restricted from developing and/or utilizing other empirical approaches as well. A commenter suggested separating the elements of Standard 1.1.O into two standards, one dealing with dignity and one with rights. The department responds that dignity and rights are sufficiently closely related to be assessed together. The same commenter suggested separating the elements of Standard 1.2.O, and suggested that MHAs need to receive results of department-wide outcome surveys. The department responds that the grouping of elements was intentional and that all MHAs will have access to the results of department surveys. A commenter suggested that Standard 1.8.O be more appropriately titled to reflect its focus on problem resolution. The department concurs and has revised the title of the standard. With regard to Standard 1.9.O, a commenter suggested rewording to include family support as an element of family satisfaction with services. The department has revised the standard. A commenter questioned the methodology by which patient and family satisfaction will be measured. Another commenter noted the vague language in some outcome standards such as 1.10.O does not clearly state what is expected of the MHA. The department responds that the standards do not stipulate the choice of methodologies for evaluating satisfaction, and that with time, the latitude in interpretation of standards will narrow as more is learned about effective outcome evaluation techniques and standards. A commenter noted that there appears to be a lack of correspondence between the outcome standards and the Final Report of the Mental Health Outcomes Workgroup presented to the department in April 1996. Another commenter made a similar observation with respect to integrating the standards with other existing requirements and assessment tools. The department responds that the standards relate directly to the final report and other departmental initiatives related to outcomes and patient and family satisfaction. An analysis of these relationships is available on request. In some cases, certain assessments may be required by the performance contract and are not dealt with in the standards per se. A commenter requested that compliance with Chapter 404, Subchapter E, relating to rights of persons receiving mental health services, be a requisite requirement. The department responds that compliance with the subchapter is required by Standard 3.2.P. A commenter requested that language be added to Standard 2.8.R requiring documentation of suicide/homicide precautions training in the training record and requiring refresher training on a regular basis. The department responds that in order for verification that training has occurred to be possible, documentation would necessarily be present in the training record. Standard 6.1.P requires the MHA to ensure that all staff competencies are commensurate with responsibilities. Concerning Standard 2.9.R, a commenter suggested that a definition and system for collecting and reviewing data on unusual incidents be added. The department responds that more detailed information will be made available in the form of the interpretive guidelines. Regarding Standard 2.10.R, a commenter noted that terminology is incorrect and suggested changes. The department has made requested changes as appropriate. With reference to Standard 2.12.R, a commenter suggested that the word "confirmed" be replaced by "identified." The department concurs and language has been changed. Concerning Standard 2.14.R, a commenter noted that the standard is to vague to understand how a determination of sufficient staffing is to be made. The department responds that the level of specificity required to adequately describe considerations in the evaluation of adequacy of staffing are more appropriately treated in the working guidelines for surveyors, which are publicly available. With reference to Standard 2.21.R, a commenter requested more information concerning compliance with the Americans with Disabilities Act (ADA). The department responds that it is not necessary to discuss the provisions of the ADA in detail to hold MHAs accountable for compliance with this significant federal law. The standards document is neither an appropriate or an effective means of training staff on the provisions of this important legislation. Concerning the proposed deletion of the standard requiring the MHA to have a public responsibility committee (PRC) in Chapter 3, Rights, six commenters expressed objections. The department concurs with the commenters' concerns and has reinstated the standard -- with revisions to the existing language -- to specify that the MHA's PRC will function in accordance with appropriate department rules [Chapter 410, Subchapter A (relating to Public Responsibility Committees.)] With reference to Standard 4.1.P, a commenter requested that language be added stating that "participation in services or treatment cannot be denied solely because of an individual's refusal of any prescribed service or treatment." The department responds that this concept is a longstanding provision of the Chapter 404, Subchapter E, relating to rights of individuals receiving mental health services. Compliance with Chapter 404, Subchapter E, is required by Standard 3.2.P. Regarding Standard 4.3.P, a commenter requested that the term "interpretive" be changed to "interpreter." The department concurs and has changed the rule. Also relating to Standard 4.3.P, a commenter requested that the term "use of native language and staff" be changed to "use of native language staff who are trained as interpreters." The department responds that although the recommendation reflects a desirable standard, in many regions of the state the requirement would be impossible to meet. Concerning Standard 6.7.P, a commenter requested the addition of the following language: "The peer review process provides objective review, evaluation, and provides recommendations for corrective action." The department concurs and has added language. With regard to Standard 7.1.P, a commenter stated that the meaning of the standard was unclear. The department responds that it has added a definition of "data-driven decision making" to the glossary. With reference to Standard 7.8.P, a commenter recommended adding "education is offered to individuals directly or through referral." The department has updated the rule as requested. With regard to Standard 8.1.P, a commenter suggested that language be added stating that when communication barriers exist, provisions are made to ensure that necessary interpreter services are available. The department responds that this principle is included in the standards and further emphasis is not warranted. A commenter suggested that in Standard 8.6.P, the second sentence be removed. The commenter noted that there is no need to update assessments from state or private providers. Another commenter questioned whether the assessment process referred to in the standard is the uniform assessment process. The department responds that when an MHA admits a consumer to its roles, it assumes responsibility for the accuracy and quality of any assessment on which it relies for purposes of providing treatment. The assessment process includes, but is not limited to, the uniform assessment process. A commenter noted that Standard 8.7.P does not specify that a psychiatrist is involved in the assessment. The department responds that a guiding principal throughout the standards is that professionals provide assessments and care commensurate with their licensure or certification. A commenter requested that the term "admission" be clarified in Standards 8.8.P and 8.9.P. The department responds that the term "admission" means admission to services, not brief intervention. A commenter questioned the time line of 21 days for updating the treatment plan of an individual discharged or absent with assignment from a state facility. The department responds that 21 days is the timeline. Concerning Standards 9.1.P and 9.2.P, and definitions of supported housing and regular integrated housing, a commenter stated that the standards and the 1996 contract stipulates that it cannot be agency-owned or -operated. The commenter requested a change in policy to provide a wider array of choices to consumers. The department responds that the standards and contract are in agreement on the need for such housing to be owned and/or operated independent of the MHA. Concerning Standard 11.1.P, a commenter questioned the rationale for dropping the ratio client to staff ratio from 12/1 to 10/1. Concerning Standard 11.10.P, Staffing, a commenter suggested that assertive community treatment (ACT) team staffing of a minimum of four hours of dedicated psychiatrist time weekly per 20 consumers is excessive. The department responds that these requirements are a cornerstone of the success of the ACT program as an alternative, out-of-office approach to serving severely and persistently mentally ill people. The requirement for psychiatrist time has served as a defining element for several long-term studies with very positive outcomes. Most recently the requirement was discussed at a TDMHMR-sponsored national meeting of experts in Fort Worth, "States Helping States," in which it was identified as a critical factor in linking specific and well-defined service modalities to successful outcomes. It is also a core element in the "fidelity to the model" self-assessment survey, which served as the source of its inclusion in the 1997 standards. It is anticipated that the requirement will be part of the national accreditation criteria being developed for ACT programs. A commenter stated that the definition of "immediate" in the glossary can be an impossibility in rural areas. The department responds that its intention is set clear and rigorous limits. With reference to the definition of "qualified mental health professional- community services," three commenters suggested that the definition, which requires a bachelor's degree by January 1, 1999, not require a bachelor's degree for registered nurses. The department concurs and has revised the definition accordingly. One commenter noted the significant contribution that licensed vocational nurses (LVNs) make in the community services arena. The department responds that LVNs are not licensed to perform mental health assessments and registered nurses are not empowered to delegate their assessment responsibilities. Also concerning the definition of QMHP, a commenter requested that the definition require that supervision be "on premises." The department responds that on premises supervision is not required or appropriate in all cases; the intent of the definition is to ensure that appropriate clinical supervision occurs, and the standard has been revised to make this distinction. With reference to the same definition, a commenter noted that in the context of workforce diversity, adequate numbers of credentialed, oriented diverse populations may not be available. The commenter, and three other commenters, suggested a grandfather clause for all staff hired before 1999. The department responds that such an allowance is not consistent with its objective of improving the level of education of staff providing QMHP services to consumers. This does not mean that less qualified staff cannot provide other services commensurate with their education and experience. A commenter expressed disagreement with increasing the educational requirements for QMHP-CS functions. The commenter stated the opinion that the only way to learn about the population served by QMHPs is through experience, and noted that experience was the part of the definition that had been deleted. The commenter felt that supervision requirements were not appropriate because many who would be in a supervisory role would not have had direct care experience. The department responds that it has clarified the supervisory requirements and that all professions designated by definition have clinical experience as part of the degree requirement. Three commenters suggested that the QMHP not be limited to a degree in a social, behavioral, or other human services field, and that individuals with a degree in a "related field," e.g., physical therapy, occupational therapy, etc., qualify as QMHPs. The department responds that the required education is intended to clearly and directly relate to the assessment of mental illness. A commenter noted that more specificity concerning the qualifications of individuals supervising QMHPs would be useful. The commenter expressed the opinion that many if not most mental health licenses are irrelevant to psychiatric rehabilitation services. The commenter requested further clarification concerning the qualifications and role of a qualified mental health paraprofessional. The department disagrees with the commenter concerning the relevance of certain professions and has provided more specificity to the definition. It is emphasized that the function of QMHP primarily relates to assessment of individuals, not provision of services. A commenter requested that the deadline by which the revised qualifications for QMHP-CS take effect should be increased by two years. The department responds that the proposed deadline is considered sufficient and ensuring that QMHP-CS functions are performed by qualified staff cannot be further delayed. The new section is adopted under the Health and Safety Code, Title 7, sec.532.0- 15, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers; and sec.534.052, which gives the board rulemaking authority for community-based mental health and mental retardation services provided by community centers and other contract providers. sec.408.21. Purpose. The purpose of this subchapter is to define the outcome, requisite, and organizational standards, standards of care, and best practice standards for community-based mental health services funded by the Texas Department of Mental Health and Mental Retardation (TDMHMR) as described in the 1997 Mental Health Community Services Standards. FIGURE 1:25 TAC sec.408.21. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618211 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: January 3, 1997 Proposal publication date: October 25, 1996 For further information, please call: (512) 206-4516 TITLE 28. INSURANCE PART I. Texas Department of Insurance CHAPTER 15.Surplus Lines Insurance SUBCHAPTER A.General Regulation of Surplus Lines Insurance 28 TAC sec.15.27 The Texas Department of Insurance adopts the amendment to sec.15.27, allowing exemptions from the minimum capital and surplus requirements for surplus lines insurers. The amendments, published in the November 1, 1996 issue of the Texas Register (21 TexReg 10801) is published without changes to sec.15.27. The amendment to sec.15.27 is necessary to more effectively regulate certain aspects of the surplus lines insurance industry and to implement the requirements of House Bill 1461 by the 73rd Legislature of Texas. House Bill 1461 amended Article 1.14, sec.8(c), to exempt certain surplus lines insurers from the applicable minimum capital and surplus requirements set forth in Article 1.14-2, sec.8(b) of the Texas Insurance Code, if the insurers write less than a minimum level of insurance premium in this State. The amendment to sec.15.27 will exempt surplus lines insurers from the minimum capital and surplus requirements of Article 1.14-2, sec.8(b) of the Texas Insurance Code, if the insurer demonstrates to the satisfaction of the Commissioner of Insurance that the insurer writes less than $50,000 of direct insurance premium in this state, provided that the direct Texas premium that the insurer writes represents less than the amount of premium written by the insurer in its domiciliary jurisdiction, represents less than 10% of the insurer's total direct written premiums written in the United States, represents less than 5.0% of the insurer's total capital and surplus, and if the insurer's premium to surplus ratio, net of reinsurance ceded, is less than 2 to 1, and the insurer meets the requirements of Article 1.14-2, sec.8(b) and sec.8(d). No comments were received regarding adoption of the amendment. The amendment is proposed under authority of Articles 1.03A and 1.14-2, sec.8(c) of the Texas Insurance Code and sec.sec.2001.004-2001.38 of the Texas Government Code, Article 1.03A of the Texas Insurance Code authorizes the Commissioner to adopt rules and regulations for the conduct and execution of the duties and functions of the Department only as authorized by statute for general and uniform application. Article 1.14-2, sec.8(c) of the Texas Insurance Code authorizes the Commissioner, by rule, to exempt an insurer from the minimum capital and surplus requirements of sec.8(b) of Article 1.14-2, if the insurer writes a minimum level of insurance premium in this state. sec.sec.2001.004- 2001.038 of the Texas Government Code authorize and require each state agency to adopt rules of practice setting forth the nature and requirements of available procedures and prescribe the procedure for adoption of rules by a state administrative agency. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618201 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: January 3, 1997 Proposal publication date: November 1, 1996 For further information, please call: (512) 463-6327 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART II. Texas Parks and Wildlife Department CHAPTER 57.Fisheries Harmful or Potentially Harmful Fish, Shellfish and Aquatic Plants 31 TAC sec.sec.57.111-57.134 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal to sec.sec.57.111-57.134, and adoption of new sec.sec.57.111- 57.134, concerning harmful or potentially harmful exotic fish, shellfish and aquatic plants, without changes to the proposed text as published in the September 17, 1996, issue of the Texas Register (21 TexReg 8889). The repeal and new rules were adopted as part of the Commission Regulations Sunset process. The repeal removes redundant sections from the Texas Administrative Code, while condensing and clarifying existing regulations. The new rules will protect indigenous stocks of aquatic life in the natural waters of Texas. The department received comments concerning several aspects of the proposed new rules. (1) On respondent suggested that all currently permitted tilapia species and their hybrids be allowed for use as bait; (2) that the department allow stocking of permitted tilapia species and hybrids of their species in private lakes as forage species; (3) that Tilapia zilli be removed from the list of harmful or potentially harmful fish; and (4) that use of Mexican blue shrimp, Penaeus stylirostris , be permitted. The aquaculture industry feels that the tilapia species and hybrids that are currently permitted by the department, are already present in all water bodies throughout the state where they're capable of surviving. Therefore, allowing their use as bait or forage would not impose any additional negative ecological impacts. Similarly, the industry believes Tilapia zilli is less cold tolerant than the current permitted species and that the species, because of its weed control capabilities, would offer an alternative to the use of triploid grass carp for aquatic weed management. The comment related to (4) above is a result of the outbreak of Taura Syndrome Virus (TSV) in Texas shrimp farms in 1995, and again this summer. The industry has access to a TSV resistant strain of Penaeus stylirostris brood stock that they would like the department to allow them to use in 1997 in an attempt to avoid another TSV outbreak. A second respondent (5) suggested adding the definition of a closed recirculating system, and then allowing operators of these systems to possess, propagate, transport and sell Penaeus monodon and Penaeus stylirostris in addition to the currently permitted Penaeus vannamei, provided the shellfish meet our current disease free requirements. This respondent also (6) suggested allowing licensed retail, wholesale fish dealers and/or restaurants to purchase or possess live Penaeus vannamei, Penaeus monodon and Penaeus stylirostris without an Exotic Species Permit, provided said species are sold or delivered to other individuals dead, packaged on ice or frozen. Representatives of the aquaculture industry suggest that because the current department rules and regulations are aimed at outdoor pond culture, it is limiting their ability to reach certain markets that request environmentally safe, toxin free, "fresh" seafood product. The Texas Natural Resources Conservation Commission (TNRCC) (7) recommends that the Commission amend its rules to require any new Exotic Species Permit applicants to obtain a discharge permit from TNRCC before permit approval. Department staff are currently working with TNRCC representatives to develop a Memorandum of Understanding (M.O.U.) regarding aquaculture rules. One of the suggestions during the development of this M.O.U. was that the department require all new aquaculture facilities to obtain a discharge permit before issuing an Exotic Species Permit. This would enhance both agencies' effectiveness in regulating exotic species aquaculture facilities. Another respondent (8) recommends that all shrimp species (native and/or exotic) imported into Texas for research and/or farming be old enough for present day disease detection methods before being stocked; that (9) each shrimp farm pond population be examined at the end of the nursery phase by a certified disease specialist; that all virus infected shrimp populations be quarantined, killed, harvested, and disposed of in a suitable land-fill; that (10) pond waters containing diseased shrimp be disinfected with a suitable chemical to kill any insects, while protecting the shrimp being harvested from birds; and (11) all infected research and commercial shrimp farm facilities be disinfected whether they are used again or not. Those making comments in favor of the proposed rules include: Federation of Texas Aquarium Societies and the Texas Aquaculture Association Those making comments opposing the proposed rules included: There were no comments opposing the proposed rules, however, there were comments suggesting additional amendments received from Texas Aquaculture Association, Penbur Farms, Texas Natural Resources Conservation Commission, Texas Shrimp Association. The same numbering system as used above will be used to respond to individual comments. Regarding items (1) and (2), staff disagrees with industry's opinion that permitted tilapia and their hybrids are already present in all water bodies where they're capable of surviving. Inland Fisheries from south Texas has revealed few or no tilapia in most of the large area reservoirs and rivers. However, tilapia have been routinely collected in small reservoirs in the lower valley and in waters in the San Antonio regional area. Staff believes that one reason tilapia have not colonized the larger reservoirs and rivers in certain south Texas areas is the bait restriction resulting in few "bait bucket" introductions. Anglers have successfully used sunfish, Rio Grande cichlids and shad, which are readily available for bait. Biologists have received no comments or requests from bait dealers or anglers concerning legalization of tilapia for bait. Because tilapia have the potential to negatively impact public water sport fisheries and since there are abundant native forage species available for bait, staff strongly urges that we maintain the prohibited use of tilapia species for bait. Regarding comment (3), although this species is less cold tolerant than our current permitted species, it does have the capability to survive in Texas springs. This species has survived in waters at the San Antonio zoo for 20 years. It is a very aggressive fish, which potentially would negatively impact native species. There are identification problems with similar tilapia species. Therefore, legalizing this one species would increase the potential for release of other similar tilapia species. Staff suggests continuing to list this species as prohibited. Regarding comment (4), researchers and industry have provided staff with information supporting their justification. The TSV situation has raised a great deal of concern since the summer of 1995. Our staff had proposed rules that would allow the department to quarantine facilities infected with TSV. However, at the request of the Senate Natural Resources Interim Subcommittee, these rules were not published in the Texas Register until the subcommittee completed their study and recommendations on aquaculture. In their report, the subcommittee recommended that the Texas Animal Health Commission be designated as the state agency responsible for monitoring and prevention of disease in aquaculture/mariculture facilities. Considering these recommendations and the department's efforts to coordinate with the TNRCC on future aquaculture rules, it is staff's opinion not to allow the use of a new exotic shrimp species until statutory issues relating to Aquaculture and shrimp farming are resolved. In response to comment (5), staff opposes permitting the use of new exotic species for the reasons mentioned previously. Staff is not recommending any exceptions for closed facilities, therefore a definition is not necessary at this time. Penbur Farms representatives may apply for an Exotic Species Research Permit for additional exotic shrimp species, but the sale of these would be prohibited. Concerning comment (6), since there is opposition to permitting P. stylirostris and P. monodon, staff does not support live shipment of these species. However, there are proposed amendments to the current rules allowing licensed retail or wholesale fish dealers to possess or purchase live Penaeus vannamei without an exotic species permit, provided their place of business is not located within our defined Exotic Species Exclusion Zone. Staff agrees with the recommendation from TNRCC (7) and proposes amending the current proposed rules to require all new exotic species aquaculture facilities to obtain a discharge permit from TNRCC before the department will consider issuing an Exotic Species Permit. Comments (8)-(11) are in reference to disease management of shrimp aquaculture facilities. As previously mentioned, the Senate Natural Resources Interim subcommittee has recommended that the Texas Animal Health Commission be designated as the lead agency responsible for disease related issues. Disease- related issues will be addressed during the next legislative session, meaning that resulting new legislation will not likely be effective until after September 1997. That means that the department will be dealing with disease management issues throughout that period. Staff is in the process of developing a Response Plan to address potential TSV outbreaks through that period. Staff believes that the means are available, including a demonstrated intent to seek judicial relief (such as Restraining Orders), and the anticipated full cooperation of the great majority of shrimp farmers we have enjoyed in the past, will be sufficient for the department to meet its responsibilities until that time. The repeals are adopted under Parks and Wildlife Code, Chapter 66, Subchapter A, sec.66.007 which gives the commission authority to regulate the possession and sale of exotic fish and shellfish. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618072 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: September 17, 1996 For further information, please call: (512) 389-4642 The new rules are adopted under Parks and Wildlife Code, Chapter 66, Subchapter A, sec.66.007 which gives the commission authority to regulate the possession and sale of exotic fish and shellfish. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618073 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: September 17, 1996 For further information, please call: (512) 389-4642 Introductory of Fish, Shellfish and Aquatic Plants 31 TAC sec.sec.57.251-251.260 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeals of sec.sec.57.251-57.260 and new sec.sec.57.251-57.257, concerning Introduction of Fish, Shellfish and Aquatic Plants, without changes to the proposed text as published in the September 24, 1996, issue of the Texas Register (21 TexReg 9137). This action represents a streamlining and recodification of current regulations concerning the placement of certain organisms in public water as part of the Parks and Wildlife Commission regulations sunset process. The new rules provides definitions necessary for implementation of following sections and references to prohibited actions related to placing fish, shellfish or aquatic plants into public water. The rules establish permit exemptions for individuals introducing native non-game fish into public waters or fishing with goldfish, common carp, native shrimp, native crabs or native crawfish and set permit application requirements and period of validity for permits. The new rules list provisions under which a permit for introduction of fish, shellfish or aquatic plants will be denied and new provide an appeal mechanism for individuals whose requests for a permit is denied. New sections provide references to penalties for violation of these provisions. The department received no comments concerning the proposed repeals. Statutory Authority: Interpretation of How Provisions Authorize or Require the Rules. The repeals are adopted under Parks and Wildlife Code, sec.12.015 and sec.66.015, which provide authority for the Parks and Wildlife Commission to regulate placement of fish, shellfish and aquatic plants into the public waters of Texas. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618022 William D. Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: September 24, 1996 For further information, please call: (512) 389-4642 31 TAC sec.sec.57.251-57.257 The new rules are adopted under Parks and Wildlife Code sec.12.015 and sec.66.015, which provide authority for the Parks and Wildlife Commission to regulate placement of fish, shellfish and aquatic plants into the public waters of Texas. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618023 William D. Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: September 24, 1996 For further information, please call: (512) 389-4642 Commercially Protected Finfish 31 TAC sec.sec.57.371, 57.374-57.375 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal of sec.57.371 and sec.sec.57.374-57.375, and new sec.sec.57.374-57.375, concerning Commercially Protected Finfish, without change to the proposed text as published in the October 1, 1996 issue of the Texas Register (21 TexReg 9416). The repeal and readoption of these sections was undertaken as part of the Commission Regulations Sunset process. The repeal removes redundant sections from the Texas Administrative Code. New rules delegate authority to the Executive Director for prescribing the format for invoice and label information and set regulations for transport and unloading of commercially protected finfish taken or raised in the EEZ. The department received no comments concerning the proposed repeal. The repeal is proposed under Parks and Wildlife Code sec.66.020. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618024 William D. Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 1, 1996 For further information, please call: (512) 389-4642 31 TAC sec.sec.57.374-57.375 The new rules are adopted under Parks and Wildlife Code sec.66.020. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618025 William D. Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 1, 1996 For further information, please call: (512) 389-4642 Permits to Sell Nongame Fish Taken From Fresh Water 31 TAC sec.sec.57.377-57.386 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeals of sec.sec.57.377-57.386 and new sec.sec.57.377-57.386, concerning Permits to Sell Nongame Fish Taken From Public Freshwater, without change to the proposed text as published in the September 4, 1996, issue of the Texas Register (21 TexReg 9609). Provisions of Parks and Wildlife Code sec.67.0041 provide authority for the Parks and Wildlife Commission to regulate sale of nongame fish taken from public waters. Further, this action represents a recodification of current regulations as part of the Commission's regulations sunset process. The repeal and new rules provide means for take and sale of nongame fish taken from public fresh waters of Texas. The repeal and new rules as adopted will enhance protection of native nongame fish species with concomitant access to these species by commercial interests. The department received no comments concerning the proposed repeals. Statutory Authority: Interpretation of How Provisions Authorize or Require the Rules. The repeals are adopted under Parks and Wildlife Code, sec.67.0041. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618026 William D. Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 389-4642 The new rules are adopted under Parks and Wildlife Code sec.67.0041. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618027 William D. Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 389-4642 Marking of Vehicles 31 TAC sec.57.500 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal to sec.57.500 and new sec.57.500, concerning Marking of Vehicles, without changes to the proposed text as published in the October 1, 1996, issue of the Texas Register (21 TexReg 9417). The repeal and readoption of these sections was undertaken as part of the Commission Regulations Sunset process. New sec.57.500 provides requirements for marking of motor vehicles, trailers or semitrailers transporting fish for commercial purposes. These marking requirements represent no change from current marking requirements. The department received no comments concerning the proposed repeal and new rule. The repeal is adopted under Parks and Wildlife Code sec.66.014. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618074 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 1, 1996 For further information, please call: (512) 389-4642 The new rule is adopted under Parks and Wildlife Code sec.66.014. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618075 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: September 17, 1996 For further information, please call: (512) 389-4642 Artifical Reef Fishery Management Plan 31 TAC sec.57.691 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal to sec.57.691, concerning Artificial Reef Fishery Management Plan and new sec.57.691, concerning Fishery Management Plans, without change to the proposed text as published in the June 25, 1996, issue of the Texas Register (21 TexReg 9417). This action represents a recodification of existing rules in accordance with the Parks and Wildlife Commission regulations sunset process. New sec.57.691 combines existing sec.57.691, concerning Texas Artificial Reef Fishery Management Plan and existing sec.57.701, concerning Texas Blue Crab Fishery Management Plan into a single section. The new section also provides information necessary for users to obtain copies of these plans. The adopted repeal and new rules streamline of regulations concerning artificial reef and blue crab fishery management plans. The repeal removes redundant sections from the Texas Administrative Code. The department received no comments concerning the proposed repeal and new rules. The repeal is adopted under Parks and Wildlife Code sec.89.021. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618076 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 1, 1996 For further information, please call: (512) 389-4642 Fishery Management Plans 31 TAC sec.57.691 The new rule is adopted under Parks and Wildlife Code sec.89.021 which directs the Department to establish an artificial reef fishery management plan, and sec.66.018 which provides authority to the Parks and Wildlife Commission to promulgate rules regarding trapping of blue crabs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618077 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 1, 1996 For further information, please call: (512) 389-4642 CHAPTER 59.Parks Park Entrance and Park User Fees 31 TAC sec.59.4 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal of sec.59.4 and new sec.59.4, concerning Reservation of State Park Facilities, without changes to the proposed text as published in the September 4, 1996, issue of the Texas Register (21 TexReg 9611). The repeal and adoption of the new section was undertaken as part of the Commission Regulations Sunset process. The repeal removes redundancy from the Texas Administrative Code. The new sec.59.4 (concerning Reservation of State Park Facilities) delegates authority to the Executive Director to prescribe procedures and conditions for reservations in state parks as is authorized by statute. The department received no comments concerning the proposed repeal. Statutory Authority: Interpretation of How Provisions Authorize or Require the Rules. The repeal is adopted under Parks and Wildlife Code sec.13.015, sec.13.019 and sec.21.111. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618029 William D. Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 389-4642 The new rule is adopted under Parks and Wildlife Code, sec.13.015, sec.13.019 and sec.21.111. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618028 William D. Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 389-4642 31 TAC sec.59.6 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal of sec.59.6, concerning Conservation Permit Fee without changes to the proposed text as published in the September 24, 1996 issue of the Texas Register (21 TexReg 9139). Permits are covered in existing rules in sec.53.2 concerning Combination Hunting and Fishing Licenses, Packages and Conservation Permits, and sec.59.2(b) concerning Park Entrance and Use Fees. This action represents repeal of redundant sections of the Texas Administrative Code. The department received no comments concerning the proposed repeal. The repeal of rules is adopted under Parks and Wildlife Code, Chapter 43, Subchapter O, sec.43.522. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618030 William D. Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: September 24, 1996 For further information, please call: (512) 389-4642 Local Park Planning Assistance 31 TAC sec.sec.59.11-59.19 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeals to sec.sec.59.11-59.19 and new sec.sec.59.10- 59.12, concerning Local Park Planning Assistance Service, without changes to the proposed text as published in the October 4, 1996, issue of the Texas Register (21 TexReg 9612). The repeal and new sections was undertaken as part of the Commission Regulations Sunset process, which resulted in simplification of the rules regarding local park planning assistance. The repeal removes redundant sections from the Texas Administrative Code, while establishing eligibility requirements and services that can be obtained from the department concerning local park planning assistance. The new rules also provide clear directions to prospective applicants on the process for obtaining local park planning assistance. The department received no comments concerning the proposed repeals. The repeals are adopted under Local Government Code, sec.331.010. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618078 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4 1996 For further information, please call: (512) 389-4642 31 TAC sec.sec.59.10-59.12 The new rules are proposed under Local Government Code, sec.331.010. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618079 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4 1996 For further information, please call: (512) 389-4642 Park Planning and Development Projects 31 TAC sec.59.31-59.34 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeals of sec.sec.59.31-59.34, concerning Park Planning and Development Projects, without changes to the proposed text as published in the September 24, 1996, issue of the Texas Register (21 TexReg 9139). The repeal of these sections was undertaken as part of the Commission Regulations Sunset process. Sections dealing with Park Planning and Development Projects were deemed redundant and restatement of operating procedures. The repeal removes redundant sections from the Texas Administrative Code. The department received no comments concerning the proposed repeal. Statutory Authority: Interpretation of How Provisions Authorize or Require the Rules. The repeals are adopted under Parks and Wildlife Code sec.sec.13.001 and 13.301- 13.313. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618012 William D. Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: September 24, 1996 For further information, please call: (512) 389-4642 Acquisition and Development of Historic Sites and Structures 31 TAC sec.sec.59.41-59.47 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal to sec.sec.59.41-59.47 and new sec.sec.59.41- 59.47 concerning Acquisition, Development and Operation of Historic Sites, Buildings and Structures, without changes to the proposed text as published in the October 4, 1996, issue of the Texas Register (21 TexReg 9613). This action represents recodification of sections of the Texas Administrative Code as part of the Commission's regulations sunset process. New sec.sec.59.41- 59.47 provide guidelines for acquisition, development and operation of historic sites, buildings and structures. New sec.59.41 provides general policy for acquisition, development and operation of historic sites, buildings and structures. New sec.59.42 outlines chronological organization to be used in historic site acquisition and development and new sec.59.43 provides acquisition guidelines. New sec.59.44 provided development guidelines. New sec.59.45 authorizes the executive director to seek sources of funding outside departmental sources for acquisition and development of historic sites while new sec.59.46 provides guidelines for maintenance of historic sites. Provisions of new sec.59.47 provide guidelines for selection and training of personnel. The department received no comments concerning the proposed repeals and new rules. The repeals are adopted under Parks and Wildlife Code, sec.13.005. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618080 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4 1996 For further information, please call: (512) 389-4642 Acquisition and Development of Historic Sites, Buildings and Structures 31 TAC sec.sec.59.41-59.47 The new rules are adopted under Parks and Wildlife Code, sec.13.005. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618081 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4 1996 For further information, please call: (512) 389-4642 Administration of the State Park System 31 TAC sec.sec.59.61-59.64 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeals to sec.sec.59.61-59.64 and new sec.sec.59.61- 59.64, concerning Administration of the State Park System, without changes to the proposed text as published in the October 1, 1996, issue of the Texas Register (21 TexReg 9419). The repeal and new sections was undertaken as part of the Commission Regulations Sunset process. This action resulted in no change in existing regulations concerning Administration of the State Park System. The new rules as adopted will provide efficient administration and classification of public lands under the control of the Parks and Wildlife Department. The department received no comments concerning the proposed repeal. The repeals are adopted under Parks and Wildlife Code, which sec.13.001 directs the Commission to establish a classification system for public lands. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618082 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 1, 1996 For further information, please call: (512) 389-4642 The new rules are adopted under Parks and Wildlife Code, sec.13.001, which directs the This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618083 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 1, 1996 For further information, please call: (512) 389-4642 Operation and Leasing of Park Concessions 31 TAC sec.sec.59.101-59.112 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeals to sec.sec.59.101-59.112 and new sec.sec.59.101-59.109, concerning Operation and Leasing of Park Concessions, without changes to the proposed text as published in the October 4, 1996, issue of the Texas Register (21 TexReg 9614). The repeal and new rules were undertaken as part of the Commission Regulations Sunset process. This action represents simplification and recodification of sections of the Texas Administrative Code. The repeal and new rules provide simplification of the regulations concerning operation and leasing of park concessions and removal of unnecessary sections of the Texas Administrative Code. The department received no comments concerning the proposed repeal and new rules. The repeals are adopted under Parks and Wildlife Code, sec.11.035 and sec.13.015. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618304 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 389-4642 31 TAC sec.sec.59.101-59.109 The new sections are proposed under Parks and Wildlife Code, sec.11.035 and sec.13.015. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618305 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 389-4642 Procedures for Selecting a Design Professional for Major Park Projects 31 TAC sec.sec.59.121-59.122 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeals of sec.sec.59.121-59.122, concerning Procedures for Selecting a Design Professional for Major Park Projects, without changes to the proposed text as published in the September 24, 1996, issue of the Texas Register (21 TexReg 9140). The repeal of these sections was undertaken as part of the Commission Regulations Sunset process. The repeal removes redundant sections from the Texas Administrative Code. The department received no comments concerning the proposed repeal. Statutory Authority: Interpretation of How Provisions Authorize or Require the Rules. The repeals are adopted under Parks and Wildlife Code, sec.13.001. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618031 William D. Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: September 24, 1996 For further information, please call: (512) 389-4642 Relocation Assistance in Park Acquisition Projects 31 TAC sec.sec.59.191-59.193 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal of sec.sec.59.191-59.193 and new sec.sec.59.191- 59.193, concerning Relocation Assistance in Park Acquisition Projects, without changes to the proposed text as published in the October 1, 1996, issue of the Texas Register (21 TexReg 9140). The repeal and adoption of new sections was undertaken as part of the Commission Regulations Sunset process. The new rules provides definitions necessary to clarify persons eligible for relocation assistance, establishes Parks and Wildlife Commission Authority to determine eligibility for relocation assistance and provides procedures and guidance if relocation assistance is approved by the Commission. The department received no comments concerning the proposed repeal and new rules. The repeals are adopted under sec.21.046, Property Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618032 William D. Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 1, 1996 For further information, please call: (512) 389-4642 The new rules are adopted under sec.21.046, Property Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618033 William D. Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 1, 1996 For further information, please call: (512) 389-4642 Expiration Provision 31 TAC sec.59.301 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal to sec.59.301, concerning Expiration Provision, without changes to the proposed text as published in the October 1, 1996, issue of the Texas Register (21 TexReg 9423). Existing sec.59.301 was adopted by the Commission as a statement of intent relative to complete regulations sunset of 31 TAC, Chapter 59, Parks. As a result of actions taken at the November 7 meeting, the regulations sunset of Chapter 59 was completed. These actions rendered sec.59.301 as redundant. The repeal removes redundant sections from the Texas Administrative Code. The department received no comments concerning the proposed repeal. The repeal is adopted under Government Code, sec.sec.2001.021-2001.052. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618084 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 1, 1996 For further information, please call: (512) 389-4642 CHAPTER 61.Design and Construction Survey Contracts 31 TAC sec.61.1 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal to sec.61.1, concerning Survey Contracts, without change to the proposed text as published in the October 4, 1996, issue of the Texas Register (21 TexReg 9619). The repeal of this section was undertaken as part of the Commission Regulations Sunset process. The repeal removes redundant sections from the Texas Administrative Code. The department received no comments concerning the proposed repeal. The repeal is adopted under Parks and Wildlife Code, sec.13.001. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618087 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 389-4642 Competitive Bid Contracts for Public Works 31 TAC sec.sec.61.21-61.24 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopted repeals to sec.sec.61.21-61.24 and new sec.sec.61.21- 61.24 Competitive Bid Contracts for Public Works, without changes to the proposed text as published in the September 4, 1996, issue of the Texas Register (21 TexReg 9620). This action represents simplification and recodification of sections of the Texas Administrative Code as part of the Commission's regulations sunset process. Proposed new sec.61.21 provides general rules regarding competitive bids for services of contractors. New sec.61.22, concerning soliciting bids, outlines requirements for the Department's solicitation of bids from the public and proposed new sec.69.23, concerning submission and receipt of bids, provides guidance and procedures for submitting responses to bids solicited by the department. Proposed new sec.69.24, concerning awards, provides criteria which the department shall use in determining the best and lowest bidder. The repeal and adoption of new sections was undertaken as part of the Commission Regulations Sunset process. New sec.61.21 provides general rules regarding competitive bids for services of contractors. New sec.61.22, concerning soliciting bids, outlines requirements for the Department's solicitation of bids from the public and new sec.69.23, concerning submission and receipt of bids, provides guidance and procedures for submitting responses to bids solicited by the department. New sec.69.24, concerning awards, provides criteria which the department shall use in determining the best and lowest bidder. The department received no comments concerning the proposed repeal and new sections. The repeals are adopted under Parks and Wildlife Code, sec.13.001. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618088 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: September 4, 1996 For further information, please call: (512) 389-4642 The new rules are adopted under Parks and Wildlife Code, sec.13.001. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618089 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 389-4642 Investigation of Land Boundaries 31 TAC sec.61.91 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal to sec.61.91, concerning Investigation of Land Boundaries, without changes to the proposed text as published in the October 4, 1996, issue of the Texas Register (21 TexReg 9620). The repeal of the section was undertaken as part of the Commission Regulations Sunset process. This action represents repeal of redundant sections of the Texas Administrative Code as part of the Parks and Wildlife Commission regulations sunset process. The department received no comments concerning the proposed repeal. The repeal is adopted under Parks and Wildlife Code sec.13.001. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618306 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 389-4642 CHAPTER 65.Wildlife SUBCHAPTER D.Grazing Leases, Sale of Products and Removal of Furbearing Animals and Reptiles 31 TAC sec.65.131, sec.65.132 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal to sec.65.131 and sec.65.132, concerning Grazing Leases, Sale of Products, and Removal of Furbearing Animals and Reptiles, without changes to the proposed text as published in the September 17, 1996, issue of the Texas Register (21 TexReg 8898). These sections represent a restatement of existing statutes and were repealed as part of the Commission's regulations sunset process. The repeals remove redundant sections from the Texas Administrative Code. The department received no comments concerning the proposed repeals. The repeals are adopted under Parks and Wildlife Code, sec.12.008 and sec.81.404. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618307 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: September 17, 1996 For further information, please call: (512) 389-4642 SUBCHAPTER E.Farm Leases 31 TAC sec.sec.65.141-65.142 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal of sec.sec.65.141-65.142, concerning Farm Leases, without changes to the proposed text as published in the September 17, 1996, issue of the Texas Register (21 TexReg 8898). These sections represent a restatement of existing statutes and are proposed for repeal as part of the Commission's regulations sunset process. The repeal removes redundant sections from the Texas Administrative Code. The department received no comments concerning the proposed repeal. The repeals are adopted under Parks and Wildlife Code, sec.12.008. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618013 William D. Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: September 17, 1996 For further information, please call: (512) 389-4642 SUBCHAPTER U.Expiration Provision 31 TAC sec.65.701 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal to sec.65.701, concerning Expiration Provision, without changes to the proposed text as published in the September 17, 1996, issue of the Texas Register (21 TexReg 8900). Existing sec.65.701 was adopted by the Commission as a statement of intent relative to complete regulations sunset of 31 TAC, Chapter 65, Wildlife. As a result of actions taken at the November 7 meeting, the regulations sunset of Chapter 65 was completed. These actions rendered sec.65.701 as redundant. The repeal removes redundant sections from the Texas Administrative Code. The department received no comments concerning the proposed repeal. The repeal is adopted under Government Code, sec.sec.2001.021-2001.052. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618308 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: September 17, 1996 For further information, please call: (512) 389-4642 SUBCHAPTER V.Wildlife Management Association Area Hunting Lease License 31 TAC sec.sec.65.801, 65.802, 65.804-65.807 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal to sec.sec.65.801, 65.802, and 65.804-65.807, and new sec.65.801, concerning wildlife management association area hunting lease license, without change to the proposed text as published in the September 17, 1996, issue of the Texas Register (21 TexReg 8900). The repeals and new section are necessary to eliminate regulations that duplicate statutory provisions and to provide the minimum amount of regulatory language necessary to carry out the intent of Parks and Wildlife Code, Chapter 81, Subchapter D. The repeals and new section will function by establishing definitions necessary to implement the provisions of Parks and Wildlife Code, Chapter 81, Subchapter D and consistent with the rulemaking authority granted by that chapter. The department received no comments concerning the proposed repeal and new rules. The repeals are adopted under Parks and Wildlife Code, Chapter 81, Subchapter D, which provides the Commission with the authority to establish regulations necessary to implement that subchapter. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618310 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: September 17, 1996 For further information, please call: (512) 389-4642 31 TAC sec.65.801 The new section is adopted under Parks and Wildlife Code, Chapter 81, Subchapter D, which provides the Commission with the authority to establish regulations necessary to implement that subchapter. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618309 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: September 17, 1996 For further information, please call: (512) 389-4642 CHAPTER 69.Resource Protection Memorandum of Understanding 31 TAC sec.69.73 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 7, 1996, adopts repeal to sec.69.73 and new sec.69.73, concerning Natural Resource Damages, without changes to the proposed text as published in the October 4, 1996, issue of the Texas Register (21 TexReg 9623). This action represents recodification of a section of the Texas Administrative Code as part of the Commission's regulations sunset process. The new rules provide uniformity in application of rules, related to natural resource damage assessment for coastal oil spills, promulgated by the General Land Office in conjunction with Texas Natural Resources Conservation Commission and the Texas Parks and Wildlife Department. The department received no comments concerning the proposed repeal and new rule. The repeal is adopted under Natural Resources Code, Chapter 40, sec.40.107. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618311 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 389-4642 Natural Resource Damages 31 TAC sec.69.73 The new section is adopted under Natural Resources Code, Chapter 40, sec.40.107. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618312 Bill Harvey Regulatory Coordinator Texas Parks and Wildlife Department Effective date: January 2, 1997 Proposal publication date: October 4, 1996 For further information, please call: (512) 389-4642 TITLE 34. PUBLIC FINANCE PART IV. Employees Retirement System of Texas CHAPTER 65.Executive Director 34 TAC sec.65.3 The Employees Retirement System of Texas (ERS) adopts an amendment to sec.65.3, concerning records of the system, without changes to the proposed text as published in the October 29, 1996 issue of the Texas Register (21 TexReg 10662). This rule is being amended to change the computer resource charges. This rule revises the computer resource charges for providing public information and copies of public information in the possession of the system, as required by Government Code, Chapter 552, sec.552.262. No comments were received regarding the adoption of the amendment. The amendment is adopted under the Government Code, Chapter 552, sec.552.262, which authorizes the General Services Commission to establish charges for public information. The Government Code, Chapter 552, sec.552.262, is affected by the proposed amendment. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618115 Sheila W. Beckett Executive Director Employees Retirement System of Texas Effective date: January 3, 1997 Proposal publication date: October 29, 1996 For further information, please call: (512) 867-3336 CHAPTER 67.Hearings on Disputed Claims 34 TAC sec.67.87 The Employees Retirement System of Texas adopts an amendment to sec.67.87, concerning procedures for presenting oral argument to the board, without changes to the proposed text as published in the October 11, 1996 issue of the Texas Register (21 TexReg 9790). This rule is being amended to change the procedures for presenting oral argument to the board before the final determination of any contested case. This rule will require that a written request be filed with the board at least three working days prior to the day on which the board is to consider the case; otherwise, oral argument will be allowed only at the discretion of the board. No comments were received regarding adoption of the amendment. The amendment is adopted under Government Code, sec.815.102, which provides the Employees Retirement System of Texas the authority to promulgate rules. Government Code, Title 8, Subtitle B is affected by this proposed amendment. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 13, 1996. TRD-9618114 Sheila W. Beckett Executive Director Employees Retirement System of Texas Effective date: January 3, 1997 Proposal publication date: October 11, 1996 For further information, please call: (512) 867-3336 PART I. Texas Department of Public Safety CHAPTER 23.Vehicle Inspection Vehicle Emissions Inspection and Maintenance Program 37 TAC sec.23.93 The Texas Department of Public Safety adopts new sec.23.93, concerning vehicle emissions inspections, without changes to the proposed text as published in the November 8, 1996, issue of the Texas Register (21 TexReg 10967). The justification for the new section will be improved air quality by the reduction of emissions of hydrocarbons, carbon monoxide and other pollutants from mobile sources. New sec.23.93 establishes a vehicle tailpipe emissions inspection program in Harris County and modifies the programs in Dallas, Tarrant and El Paso counties to comply with the Revised Texas Inspection and Maintenance (I/M) State Implementation Plan (SIP). Section 23.93 further provides definitions, specific requirements for testing particular year models, rules and regulations for inspectors and inspection stations, sets out procedures for issuing an emissions test only certificate, allows the department to conduct gas audits on analyzers as a quality control measure for the public, provides for a loaded mode vehicle emissions test as an additional quality control measure of the program and sets out penalties for failing to comply with the rules. No comments were received regarding adoption of the new section. The new section is adopted pursuant to the Texas Transportation Code, Chapter 548, which provides the department with the authority to adopt rules to administer and enforce the chapter, and pursuant to the Texas Health and Safety Code, Chapter 382 (the Texas Clean Air Act (TCAA)), which provides the department with the authority to adopt rules consistent with the policy and purposes of the TCAA. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 11, 1996. TRD-9617991 Dudley M. Thomas Director Texas Department of Public Safety Effective date: January 1, 1997 Proposal publication date: November 8, 1996 For further information, please call: (512) 424-2890 PART V. Texas Board of Pardons and Paroles CHAPTER 145.Parole The Texas Board of Pardons and Paroles adopts the repeal and new rule to sec.145.1, concerning parole decisionmaking, without changes to the proposed text as published in the October 22, 1996, issue of the Texas Register (21 TexReg 10419). The Board adopts the repeal and new rule in order to clarify the Board's authority under law to make parole decisions. No comments were received regarding adoption of the repeal and new rule. Parole Process 37 TAC sec.145.1 The repeal is adopted under the Code of Criminal Procedure, Article 42.18, sec.7 and sec.8, which provide the Board with the authority to establish rules with respect to board panel decisionmaking. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 16, 1996. TRD-9618232 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: January 6, 1997 Proposal publication date: October 22, 1996 For further information, please call: (512) 463-1883 The new rule is adopted under the Code of Criminal Procedure, Article 42.18, sec.7 and sec.8, which provide the Board with the authority to establish rules with respect to board panel decisionmaking. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 16, 1996. TRD-9618233 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: January 6, 1997 Proposal publication date: October 22, 1996 For further information, please call: (512) 463-1883 37 TAC sec.145.3 The Texas Board of Pardons and Paroles adopts an amendment to sec.145.3, concerning policy statements relating to parole release decisions by the Board, without changes to the proposed text as published in the October 22, 1996, issue of the Texas Register (21 TexReg 10420). The Board adopts the amendment in order to clarify the classification criteria necessary for review for parole release. No comments were received regarding adoption of the amendment. The amendment is adopted under the Code of Criminal Procedure, Article 42.18, sec.7 and sec.8, which vests the Board with authority to make parole release decisions. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 16, 1996. TRD-9618234 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: January 6, 1997 Proposal publication date: October 22, 1996 For further information, please call: (512) 463-1883 Reinstatement of Administrative Release (Parole and Mandatory Supervision) After Revocation 37 TAC sec.145.71 The Texas Board of Pardons and Paroles adopts an amendment to sec.145.71, concerning reinstatement of administrative release after revocation, with one non-substantive change to the proposed text as published in the October 22, 1996, issue of the Texas Register (21 TexReg 10421). The Board adopts the amendment in order to clarify the procedures used by the Board to process reinstatement requests. One written comment was received from a Parole Board member requesting a non- substantive change in order to delete an erroneous reference in subsection (h) to another Board rule. The change made to subsection (h) deletes superfluous and erroneous material as requested. The amendment is adopted under the Code of Criminal Procedure, Article 42.18, sec.7 and sec.8, which vests the Board with authority to make parole release decisions; and sec.14, which provides for hearings and sanctions of administrative releasees subject to revocation of that release. sec.145.71.Reinstatement; Exceptional Circumstances; Hearing. (a) Except for persons revoked and reinstated in accord with the provisions of sec.145.56 of this title (relating to Revocation of Administrative Release (Parole, Mandatory Supervision); Recommendation; Proclamation; Warrant), there is no entitlement to consideration for reinstatement of a revoked administrative release. (b) (No change.) (c) All requests for reinstatement of administrative release shall be referred to the General Counsel or Director of Paroles, Hearings and Clemency for review, investigation, and transmittal. (d) Upon review of the person's request for reinstatement of administrative release, the board shall: (1) order that the revoked administrative release be reinstated; (2) grant a reinstatement hearing; (3) deny the request for reinstatement; or (4) take any other action allowed by law. (e) If the board grants a reinstatement hearing, the case shall be referred to a parole panel or a designee of the board for the conducting of such hearing, to be held within a reasonable time. (f) (No change.) (g) After hearing under the applicable sections therefor under Chapter 147 of this title (relating to Hearings), the parole panel shall make final disposition as follows: (1) reinstatement under the same or modified conditions of release; (2) deny the request for reinstatement; or (3) take any other action allowed by law. (h) Upon the approval of reinstatement by a parole panel, the person shall be ordered released. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 16, 1996. TRD-9618236 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: January 6, 1997 Proposal publication date: October 22, 1996 For further information, please call: (512) 463-1883 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 3.Income Assistance Services The Texas Department of Human Services (DHS) adopts the repeal of sec.3.601, and sec.3.2713; amendments to sec.sec.3.403, 3.501, 3.702, 3.704, 3.902, 3.1003, 3.1004, 3.2901, 3.3101, 3.3401, 3.3402, and 3.3702; and new sec.3.601 and sec.3.2713, concerning citizenship, special households, expedited services, household determination, resources, income, budgeting, claims, confidentiality, program violation, and support documents in its Medicaid Eligibility rule chapter. The purpose of the repeals, amendments, and new sections is to include information mandated by federal law as a result of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 and the Omnibus Budget Reconciliation Act of 1996. The repeals, amendments, and new sections will function by ensuring that DHS will be in compliance with federal law. SUBCHAPTER D.Expedited Services 40 TAC sec.3.403 The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendment is adopted in compliance with federal requirements effective August 22, 1996. The amendment implements the Human Resources Code, sec.sec.22.001-22.030. sec.3.403. Time Limits. (a) (No change.) (b) DHS provides benefits to all other households in immediate need of food as stipulated in the Food Stamp Act of 1977 except as stipulated in Title VIII, Section 838 of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618057 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 22, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER E.Household Determination 40 TAC sec.3.501 The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendment is adopted in compliance with federal requirements effective August 22, 1996. The amendment implements the Human Resources Code, sec.sec.22.001-22.030. sec.3.501. Household Determination. (a)-(b) (No change.) (c) Food stamps. DHS includes or excludes people from the food stamp household as specified in the Food Stamp Act of 1997 as amended by Title VIII, Section 821 of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. (d) Food stamps. DHS allows separate households according to the requirements stipulated in Section 3(i) of the Food Stamp Act of 1977 as amended by Title VIII, Section 803 of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618058 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 22, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER F.Citizenship 40 TAC sec.3.601 The repeal is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The repeal is adopted in compliance with federal requirements effective August 22, 1996. The repeal implements the Human Resources Code, sec.sec.22.001-22.030. sec.3.601.Requirements. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618059 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 22, 1996 For further information, please call: (512) 438-3765 The new section is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The new section is adopted in compliance with federal requirements effective August 22, 1996. The new section implements the Human Resources Code, sec.sec.22.001-22.030. sec.3.601. Requirements. (a) Aid to families with dependent children (AFDC). In order to receive AFDC benefits, an individual must be either a citizen, or an alien specified in paragraphs (1)-(2) of this subsection: (1) an alien who was legally admitted on or before August 22, 1996, and who meets the criteria specified in 45 Code of Federal Regulations sec.233.50; or (2) an alien who was legally admitted on or after August 22, 1996, and who meets the eligibility criteria specified in Title IV, Section 402(b)(2) of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. (b) Food stamps. In order to receive food stamp benefits, an individual must be either a citizen, or an alien who is legally admitted to the United States and who meets the eligibility criteria specified in Title IV, Section 402(a) of Public law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996., or who meets the eligibility criteria specified in Subtitle A, Sections 501 and 510 of the Omnibus Budget Reconciliation Act of 1996. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618060 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 22, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER G.Resources 40 TAC sec.3.702, sec.3.704 The amendments are adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendments are adopted in compliance with federal requirements effective August 22, 1996. The amendments implement the Human Resources Code, sec.sec.22.001-22.030. sec.3.702. Determining Value. The value of a nonexempt resource will be its equity value, except for licensed vehicles which for food stamps is specified in the Food Stamp Act of 1977 as amended by Title VIII, Section 810 of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. sec.3.704.Types. (a)-(c) (No change.) (d) Food stamps. Exclusions from resources for food stamps are those stipulated in the Food Stamp Act of 1977 as amended by Title VIII, Section 810 of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618065 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 22, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER I.Income 40 TAC sec.3.902 The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendment is adopted in compliance with federal requirements effective August 22, 1996. The amendment implements the Human Resources Code, sec.sec.22.001-22.030. sec.3.902. Types of Income. (a)-(b) (No change.) (c) Food stamps inclusions. DHS counts as income the types of income stipulated in the Food Stamp Act of 1977 as amended by Title VIII, of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, except as specified in subsection (d) of this section. (d) Food stamps exclusions. DHS excludes as income the types of income stipulated in Public Laws 101-201 (Agent Orange Settlement Act) and 100-426 (Radiation Exposure Compensation Act) and the Food Stamp Act of 1977 as amended by Title VIII of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, except for educational assistance, certain types of income of SSI recipients, and non on-the-job training income from the National Community Services Act (NCSA) programs (Public Laws 101-610 and 103-82). DHS excludes educational assistance and income of SSI recipients as stipulated in United States Code, sec.2014, Part 5(d) and (e). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618061 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 22, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER J.Budgeting 40 TAC sec.3.1003, sec.3.1004 The amendments are adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendments are adopted in compliance with federal requirements effective August 22, 1996. The amendments implement the Human Resources Code, sec.sec.22.001-22.030. sec.3.1003. Deductions. (a) (No change.) (b) Food stamps. DHS allows deductions from income as stipulated in the Food Stamp Act of 1977 as amended by Title VIII, of Public Law 104-193, Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Regarding a standard utility deduction, DHS allows a single deduction as specified. Regarding a standard shelter deduction for homeless households, DHS allows the standard as computed annually as stipulated in the Food Stamp Act of 1977 as amended by title VIII, Section 809, of Public Law, 104-193, the Personal Responsibility and work Opportunity Reconciliation Act of 1996. sec.3.1004.Budgeting. (a) Food Stamps - DHS budgets food stamps prospectively as stipulated in the Food Stamp Act of 1977 as amended by title VIII, Section 829 of Public law 104- 193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. (b) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618062 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 22, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER AA.Special Households 40 TAC sec.3.2713 The repeal is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The repeal is adopted in compliance with federal requirements effective August 22, 1996. The repeal implements the Human Resources Code, sec.sec.22.001-22.030. sec.3.2713. Categorical Eligibility. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618063 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 22, 1996 For further information, please call: (512) 438-3765 The new section is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The new section is adopted in compliance with federal requirements effective August 22, 1996. The new section implements the Human Resources Code, sec.sec.22.001-22.030. sec.3.2713Homeless Households. The Texas Department of Human Services determines food stamp eligibility and benefits for homeless households as stipulated in the Food Stamp Act of 1977 as amended by Title VIII, Section 805 of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618066 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 22, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER CC.Claims 40 TAC sec.3.2901 The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendment is adopted in compliance with federal requirements effective August 22, 1996. The amendment implements the Human Resources Code, sec.sec.22.001-22.030. sec.3.2901. Client Responsibility to Repay. (a) Aid to Families with Dependent Children. Clients must repay any benefits they receive that they are not entitled to. (b) Food stamps. Clients must repay any benefits they receive that they are not entitled to as stipulated in the Food Stamp Act of 1977 as amended by Title VIII, Sections 809 and 844, of Public Law, 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618067 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 22, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER EE.Confidentiality 40 TAC sec.3.3101 The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendment is adopted in compliance with federal requirements effective August 22, 1996. The amendment implements the Human Resources Code, sec.sec.22.001-22.030. sec.3.3101. Disclosure of Information. (a) (No change.) (b) Aid to Families with Dependent Children and food stamps. Authorized government agencies may review cases for audit purposes and to obtain medical information. Agencies requesting the information must be subject to same confidentiality standards as the department. (c) Aid to Families with Dependent Children. Workers must notify AFDC clients' employers of their status for the purpose of claiming the welfare employment incentive tax credit. (d) Aid to Families with Dependent Children and food stamps. AFDC and food stamp case information may be released as stipulated in sec.71.4 of this title (relating to General Principles). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618068 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 22, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER HH.Program Violation 40 TAC sec.3.3401, sec.3.3402 The amendments are adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendments are adopted in compliance with federal requirements effective August 22, 1996. The amendments implement the Human Resources Code, sec.sec.22.001-22.030. sec.3.3401.Fraud. Aid to Families with Dependent Children and food stamp clients are subject to the Texas Department of Human Service's rules in Chapter 79 of this title (relating to Legal Services) about intentional program violations. sec.3.3402. Food Stamps as Obligations of the United States. Any unauthorized issuance, use, transfer, acquisition, alteration, possession, or presentation of food stamps authorization to participate cards, or access devices may subject any person, partnership, corporation, or other legal entity to prosecution under the Food Stamp Act of 1977 as amended by Title VIII, Section 814 of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 or under any other applicable federal, state, or local law, regulation, or ordinance. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618069 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 22, 1996 For further information, please call: (512) 438-3765 SUBCHAPTER KK.Support Documents 40 TAC sec.3.3702 The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendment is adopted in compliance with federal requirements effective August 22, 1996. The amendment implements the Human Resources Code, sec.sec.22.001-22.030. sec.3.3702. Food Stamp Basis of Issuance Tables. The Texas Department of Human Services amends the basis of issuance tables, standard deductions, and allotment levels on an annual basis each October, as required by Section 3(o) and 5(e) of the Food Stamp Act of 1977 as amended by Title VIII, Sections 804 and 809 of Public law 104-193, Personal Responsibility and work Opportunity Reconciliation Act of 1996. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 12, 1996. TRD-9618070 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 22, 1996 For further information, please call: (512) 438-3765