ADOPTED RULES
An agency may take final action on a section 30 days after a proposal has been 
published in the Texas Register. The section becomes effective 20 days after the 
agency files the correct document with the Texas Register, unless a later date 
is specified or unless a federal statute or regulation requires implementation 
of the action on shorter notice.
If an agency adopts the section without any changes to the proposed text, only 
the preamble of the notice and statement of legal authority will be published. 
If an agency adopts the section with changes to the proposed text, the proposal 
will be republished with the changes.

TITLE 16. ECONOMIC REGULATION
PART II. Public Utility Commission of Texas
CHAPTER 22.Practice and Procedure
SUBCHAPTER O.Rulemaking
16 TAC sec.sec.22.281, 22.282, 22.284
The Public Utility Commission of Texas adopts amendments to sec.sec.22.281 
relating to Initiation of Rulemaking; 22.282 relating to Notice and Public 
Participation in Rulemaking Procedures; and 22.284 relating to Informal 
Information Gathering with changes to the proposed text as published in the 
February 6, 1998 Texas Register (23 TexReg 888). The amendments are necessary to 
conform the rules to the commission's current organization and practices, 
provide the commission with more flexibility in rulemaking procedures, and 
ensure that public hearings are requested in a timely manner. These amendments 
are adopted under Project Number 18484. The commission received written comments 
on the proposed amendments from Houston Lighting and Power Company (HL & P) and 
the Office of Public Utility Counsel (OPC). 
HL & P expressed concern on the proposed changes to sec.22.282(c) that would 
provide for the commission to require the filing of comments on a proposed rule 
within less than 30 days after publication. HL & P commented that on all but the 
simplest of matters, 30 days is the "reasonable minimum period for stakeholders 
and other interested parties to formulate and prepare comments on proposed 
amendments." HL & P stated that in cases where state or federal requirements may 
require expedited commission action, the commission may adopt a rule on an 
emergency basis under Government Code sec.2001.034(a) and therefore the proposed 
change is unnecessary. 
The Administrative Procedure Act (APA), Government Code sec.2001.029 requires 
that state agencies "give all interested persons a reasonable opportunity to 
submit data, views or arguments, orally or in writing" on rulemaking 
proceedings. Procedural Rule sec.22.282(c), as it currently exists, contains a 
more stringent requirement than the APA. The commission agrees with HL & P that 
30 days should be the usual comment period for rulemaking proceedings, and it is 
not the commission's intent to change this practice. The commission does not 
consider adoption of rules on an emergency basis to be an acceptable substitute. 
Rules adopted under Government Code sec.2001.034 on an emergency basis may be 
effective for not longer than 120 days (with one renewal for not longer than 60 
days permitted), and then must still be adopted through the normal rulemaking 
process. This is very time consuming on agency resources. Further, rules which 
require or merit expedited consideration may not necessarily qualify as 
"emergencies" as defined in Government Code sec.2001.034. At times, by reducing 
the comment period to less than 30 days, but still maintaining a reasonable 
opportunity for comments, the commission may be able to expedite final adoption 
of a rule without placing a burden on interested persons and stakeholders or 
agency resources. The commission declines HL & P's request not to adopt the 
proposed amendment to sec.22.282(c). 
OPC commented on the proposed changes to sec.22.282(f), which "delete language 
which permitted oral argument of interested parties during the open meeting in 
which final action was contemplated for a particular rule." OPC further stated 
that the deletion of the language seems to suggest that only PUC insiders or 
experienced practitioners are able to comment on rules by following the 
procedures outlined in the Texas Register. The deletion of the language in 
sec.22.282(f) is intended to conform the rule to current commission practice. 
The commission's current practice is to request written comments on all rule 
proposals and to schedule public hearings separate from the commissioner's open 
meetings to receive oral comments on most rule proposals. By encouraging 
interested persons to offer comments before the open meeting at which the 
commission considers a rule for adoption, the commissioners allow themselves a 
reasonable opportunity to consider the comments before acting on a rule 
proposal. Further, deletion of the language does not preclude the commission 
from accepting oral comments at the open meeting during which a rule is 
considered for final action when appropriate.
The commission had proposed amending sec.22.282(e) to change from seven to six 
days the number of days prior to an open meeting that staff is required to file 
its final recommendation. The commission had proposed this amendment to conform 
sec.22.282(e) to sec.22.71(h)(1) of this title (relating to Filing of Pleadings 
and Other Materials) for consistency. The commission has instead filed a 
proceeding to amend sec.22.71(h)(1) to require filing of documents seven days 
prior to the open meeting on which they are to be considered, so sec.22.282(e) 
is not amended. 
The Appropriations Act of 1997, HB 1, Article IX, Section 167 (Section 167) 
requires that each state agency review and consider for readoption each rule 
adopted by that agency pursuant to Government Code, Chapter 2001. Such reviews 
shall include, at a minimum, an assessment by the agency as to whether the 
reason for adopting or readopting the rule continues to exist. The commission 
invited specific comments regarding the Section 167 requirement, as to whether 
the reason for adopting the rules continues to exist, in the comments on these 
amendments. No parties commented on the Section 167 requirement. The commission 
finds that the reason for adopting these sections continues to exist.
These amendments are adopted under the Public Utility Regulatory Act, Texas 
Utilities Code Annotated sec.14.002 and sec.14.052 (Vernon 1998) which provides 
the commission with the authority to make and enforce rules reasonably required 
in the exercise of its powers and jurisdiction, including rules of practice and 
procedure. 
Cross Reference to Statutes: Public Utility Regulatory Act sec.14.002 and 
sec.14.052.

sec.22.281.Initiation of Rulemaking. 
(a) Petition for Rulemaking. Any interested person may petition the commission 
requesting the adoption of a new rule or the amendment of an existing rule. 
(1) (No change.) 
(2) Upon receipt of a petition for rulemaking, the commission shall submit a 
notice for publication in the "In Addition" section of the Texas Register. The 
notice shall include a summary of the petition, the name of the individual, 
organization or entity that submitted the petition, and notification that a copy 
of the petition will be available for review and copying in the commission's 
central records. Comments on the petition shall be due three weeks from the date 
of publication of the notice. Failure to publish a notice of a petition for 
rulemaking in the Texas Register shall not invalidate any commission action on 
the petition for rulemaking. 
(3) (No change.) 
(b) Commission Initiated Rulemaking. The commission may initiate rulemaking 
proceedings on its own motion. Nothing in this section shall preclude the 
commission staff from consideration or development of new rules or amendments to 
existing rules without express direction from the commission. 

sec.22.282. Notice and Public Participation in Rulemaking Procedures. 
(a)-(b) (No change.) 
(c) Public Comments. Prior to the adoption of any rule, the commission shall 
afford all interested persons reasonable opportunity to submit data, views, or 
arguments in writing. Written comments must be filed within 30 days of the date 
the proposed rule is published in the Texas Register unless the commission 
establishes a different date for submission of comments. The commission may also 
establish a schedule for reply comments if it determines that additional 
comments would be appropriate or helpful in reaching a decision on the proposed 
rule.
(d) Public Hearing. The commission may schedule workshops or public hearings on 
the proposed rule. An opportunity for public hearing shall be granted if 
requested by at least 25 persons, by a governmental subdivision or agency, or by 
an association having at least 25 members. The request for public hearing must 
be made no later than 30 days after the date the proposed rule is published in 
the Texas Register, unless the commission establishes a different date for 
requesting a public hearing.
(e) Staff Recommendation. Staff's final recommendation shall be submitted to the 
commission and filed in central records at least seven days prior to the date on 
which the commission is scheduled to consider the matter, unless some other date 
is specified by the commission. Staff will notify all persons who have filed 
comments concerning the proposed rule of the filing of staff's final 
recommendation.
(f) Final Adoption. Following consideration of comments, the commission will 
issue an order adopting, adopting as amended, or withdrawing the rule within six 
months after the date of publication of the proposed rule or the rule is 
automatically withdrawn. 

sec.22.284.Informal Information Gathering. 
(a) The commission, or the commission staff may use informal conferences and 
consultations as a means of obtaining the viewpoints and advice of interested 
persons concerning a contemplated rulemaking. 
(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.
Filed with the Office of the Secretary of State on April 17, 1998.
TRD-9805391
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: May 7, 1998
Proposal publication date: February 6, 1998
For further information, please call: (512) 936-7308

CHAPTER 23.Substantive Rules
SUBCHAPTER A.General Rules
16 TAC sec.sec.23.1, 23.2, 23.4
The Public Utility Commission of Texas (PUC) adopts the repeals of sec.23.1 
relating to Purpose and Scope of Rules; sec.23.2 relating to Severability 
Clause; and sec.23.4 relating to Statement of Nondiscrimination without changes 
as published in the January 30, 1998 Texas Register (23 TexReg 694). Project 
Number 17709 has been assigned to the repeal of these sections. 
The commission is in the process of reorganizing its rules, located in Chapter 
23 of this title, to: (1) satisfy the requirements of the Appropriations Act, 
Article IX, Section 167 for all state agencies to review its rules; (2) repeal 
rules no longer needed; (3) update existing rules to reflect changes in the 
industries regulated by the commission; (4) do clean-up amendments made 
necessary by changes in law and commission organizational structure and 
practices; (5) reorganize rules into new chapters to facilitate future 
amendments and provide room for expansion; and (6) reorganize the rules 
according to the industry to which they apply. Chapter 25 has been established 
for all commission substantive rules applicable to electric service providers. 
Chapter 26 has been established for all commission substantive rules applicable 
to telecommunications service providers. The duplicative sections of Chapter 23 
are repealed as the corresponding new sections are adopted in Chapter 25 and/or 
Chapter 26. Sections 23.1, 23.2 and 23.4 are duplicative of new sections adopted 
into Chapter 25 and Chapter 26 at the April 1, 1998 Open Meeting of the 
commission. 
The commission received no written comments on the proposed repeals. 
These repeals are adopted under the Public Utility Regulatory Act, Texas 
Utilities Code Annotated sec.14.002 (Vernon 1998) which provides the commission 
with the authority to make and enforce rules reasonably required in the exercise 
of its powers and jurisdiction.
Cross Reference to Statutes: Public Utility Regulatory Act sec.14.002.
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.
Filed with the Office of the Secretary of State on April 17, 1998.
TRD-9805377
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: May 7, 1998
Proposal publication date: January 30, 1998
For further information, please call: (512) 936-7308

SUBCHAPTER C.Rates
16 TAC sec.23.25
The Public Utility Commission of Texas (PUC) adopts new sec.23.25, relating to 
Procedures Applicable to Chapter 58-Electing Incumbent Local Exchange Companies 
(ILECs), with changes to the proposed text published in the November 7, 1997 
Texas Register (22 TexReg 10876). The rule will establish expedited procedures 
for electing ILECs to introduce a new service or to modify the rates or tariff 
terms of an existing service. Project number 17472 was assigned to this 
proceeding.
A public hearing on the rule was held at commission offices on December 15, 
1997, at 9:30 a.m. Representatives from MCI Telecommunications Corporation (MCI) 
and Southwestern Bell Telephone Company (SWBT) were present. To the extent the 
participants attended the hearing and filed written comments, the participants' 
statements largely reflect their written comments and are summarized herein. 
The commission received written comments on the proposed rule from MCI, SWBT, 
and GTE Southwest Incorporated (GTE). 
The commission filed an application form to be used in compliance with this rule 
on December 22, 1997. Written comments regarding the application form were filed 
on January 16, 1998, by SWBT. 
The commission invited specific comment regarding the costs associated with, and 
benefits that will be gained by, implementation of the proposed rule. Although 
SWBT questioned the need for a rule, SWBT expressed support in written comments 
and at the public hearing for the proposed rule, which it claims, is generally 
consistent with existing informal procedures. MCI lauded commission efforts to 
protect the public and ILEC competitors through the proposed rule. 
SWBT expressed concern that the statement in sec.23.25(d)(2), "a package of 
services that contains a basic network service shall be governed by the 
procedures found in subsection (k) or (l) of this section," presents a potential 
ambiguity. According to SWBT, many discretionary and competitive services 
include a basic network service as a matter of definition, e.g., Caller ID 
service; this section could be misinterpreted to apply to Caller ID promotions 
because a basic network service, i.e., the access line, is "packaged" with the 
discretionary service. SWBT proposed alternative language to prevent such 
ambiguity. The commission does not believe that this provision is ambiguous. 
Services are assigned to either the basic network, discretionary, or competitive 
service classification by Chapter 58 of the Public Utility Regulatory Act 
(PURA), e.g., Caller ID service is classified as a discretionary service by 
sec.58.101(4). Furthermore, pursuant to sec.23.104 of this title (relating to 
Telecommunications Pricing), a package of services containing discretionary or 
competitive services may not include a basic network service. 
SWBT and GTE commented that the notice requirements of this section are
burdensome, expensive, unnecessary, and anticompetitive. SWBT suggested that a 
"bill message" should be an acceptable, alternate form of notification to a 
"bill insert." SWBT and GTE both stated that quarterly notification would be too 
costly. To support customer access, both recommended listing an Internet address 
and toll-free number in the public information pages of all telephone 
directories published in Texas. To address the concerns expressed by SWBT and 
GTE, the commission changes the rule in the following respects: As published, 
sec.23.25(e) required notice quarterly to notify affected persons that proposed 
changes in the rates or terms of service are regularly published in the Texas 
Register; that language has been changed to require semi-annual notice. As 
published, sec.23.25(e) required notice by bill insert or direct mail; that 
language has been changed to allow notice by bill message. In order to support 
year- round customer awareness, the commission adopts SWBT and GTE's suggestion 
that the notification also appear in the public information pages of all 
telephone directories published in Texas and makes these changes in the rule 
accordingly. GTE also commented that the rule would require maintenance of a 
database of customers and carriers that request notification of changes in rates 
and terms of service, and that this process would be "redundant and 
administratively unwieldy." The maintenance of a database of customers and 
carriers that request direct notification of changes in rates and terms of 
service is necessary in order to ensure that affected persons are properly 
notified. The commission does not believe that this process will be 
administratively unwieldy. 
SWBT further commented that notice in the proposed rule is redundant because of 
existing notification procedures; interested and affected parties, e.g., Local 
Service Providers (LSPs), presently receive advance notice of SWBT's new 
services and promotions under the notice provisions in the interconnection 
agreements. While the notification provisions of the interconnection agreements 
do provide notice to some LSPs, those provisions apply only to LSPs that 
arbitrated disputes with the commission or that have negotiated that term in 
their interconnection agreement. SWBT did not state in its comments that every 
interconnection agreement approved by the commission provides for such notice. 
Further, other potentially affected parties, such as interexchange carriers, 
that do not provide local service would not receive notification under an 
interconnection agreement. Because these interested parties could possibly be 
omitted from the notification process, the commission declines to modify the 
notice requirements.
GTE and SWBT opposed the presumption of non-proprietary status for information 
filed pursuant to this rule. GTE recommended striking this section, noting that 
commission- established rules regarding long run incremental cost (LRIC) studies 
already contain provisions for confidentiality. GTE proposed that companies 
filing pursuant to this rule should be allowed to submit information to the 
commission with the status that the company deems appropriate. If the commission 
should find that information filed as "proprietary" should be made public, GTE 
maintained that the company could then decide whether to change the status of 
the information or withdraw its filing. SWBT suggested that this section should 
reference the ability to file any confidential information pursuant to a general 
protective order and should also require the PUC to establish this protective 
order. The commission does not agree with SWBT and GTE's concern that 
information filed pursuant to this rule should be classified as proprietary. The 
commission notes that the electing ILEC will have the opportunity to establish 
whether information filed is proprietary or confidential; however, the 
presumption remains that information filed pursuant to this rule is public 
information. For information that the electing ILEC establishes as proprietary 
or confidential, a general protective order may be beneficial. The commission 
has amended the rule accordingly, and a project has been opened to adopt a 
standard protective agreement for sec.23.25 filings. 
SWBT challenged the commission's authority to require an electing ILEC to file 
an application to change the price of an existing discretionary or competitive 
service. SWBT made similar statements in response to the commission's request 
for comments on the proposed application form. According to SWBT, under PURA, a 
more appropriate description of the filing would be "notification" by the 
electing ILEC. The commission disagrees and believes that the application that 
an electing ILEC must file to change the price of an existing discretionary or 
competitive service will ensure that the appropriate information is filed. The 
filing shall include all information which the commission must review in order 
to determine that pricing obligations, e.g., LRIC floors, are met. The 
application is not burdensome and will expedite price changes for electing 
ILECs. If an application is properly submitted to the commission, it will 
prevent material deficiencies and the resulting day-for-day adjustments to the 
time frames set forth in the rule. In addition, Chapter 58 of PURA distinguishes 
between discretionary and competitive services by providing different regulatory 
requirements for each classification. The commission uses this distinction to 
establish the effective dates of tariff sheets for each service classification. 
Accordingly, the commission rejects SWBT's proposal that price changes for 
existing discretionary and competitive services receive similar treatment to 
that of price changes for competitive services, which are received and effective 
on an interim basis. 
SWBT commented that subsections (h)(3) and (i)(3), which state that the 
commission shall cause notice to be published in the Texas Register, should be 
"tightened" to instead require publication of notice in the next issue of the 
Texas Register immediately following an electing ILEC's filing. The commission 
declines to adopt SWBT's suggestion because, although the Texas Register is a 
weekly publication, it requires that such notice be delivered at least nine days 
before the date of publication. Thus, a requirement to publish notice in the 
next issue of the Texas Register immediately following an electing ILEC's filing 
is impractical. SWBT objected to the requirement of filing both a notice of 
intent and an application because it is cumbersome. SWBT expressed this same 
objection in its comments regarding the application form. Instead, SWBT proposed 
eliminating the notice of intent or consolidating these two filings into a 
single filing. SWBT offered that the same time frames that were contemplated by 
the rule would be sufficient. The commission agrees and has amended the rule 
accordingly to eliminate the notice of intent requirement. The commission has 
also amended the application form to incorporate that change. 
SWBT commented that the last phrase in subsection (k)(1), which references that 
an electing ILEC may not seek pricing flexibility for a basic network service, 
is unnecessary because sec.23.104 has already addressed the issue of pricing 
flexibility for basic network services. The commission agrees with SWBT and 
deletes the last phrase in subsection (k)(1). 
SWBT commented that a provision should be added regarding the option of an 
electing ILEC, as provided in PURA sec.58.104, to use any of the regulatory 
treatments authorized under Chapter 52, Subchapters A-D. The commission declines 
to add specific language to that effect because the regulatory flexibility 
proposed by SWBT is already available under PURA sec.58.104. 
SWBT also expressed its opinion that the rule should contain language that 
permits waiver of any provision in the rule upon good cause, as this is 
consistent with other substantive rules. In light of the fact that the 
commission has broad authority to waive the requirements of any substantive 
rule, the commission does not find it necessary to add specific language on 
waiver. 
In response to the commission's request for comments related to the application 
form, SWBT reiterated its concerns that the notice of intent should be 
eliminated and suggested that if not deleted, the notice of intent form needed 
revising. As stated above, the notice of intent form has been eliminated. 
Although SWBT objected to language in the notice of intent form, which has been 
deleted, the commission addresses this objection because the language is present 
in the body of the rule. Specifically, SWBT objected to the fact that the 
effective date can be no earlier than 90 days after completion of notice. SWBT 
states that this provision is even more restrictive than sec.23.26, which states 
that the effective date shall be no earlier than 30 days after the filing date 
of the application or 30 days after public notice is completed, whichever is 
later. That provision of the rule is taken directly from statutory language in 
PURA. Section 58.059(f), which expressly governs rate increases for basic 
network services, provides that "the rate adjustment takes effect on the 90th 
day after the date the electing company completes the notice required by this 
section unless the commission suspends the effective date under subsection(g)." 
Section 23.26 applies to approval of a new service and is irrelevant to a price 
increase for a basic network service. 
SWBT commented that the application form's reference in part I, paragraph 5 to 
the quarterly notice should be eliminated. The commission believes the objective 
of customer notice can be achieved by semi-annual notice and has amended the 
rule and application form accordingly. 
SWBT objected to the extent any of the proposed application forms draw upon 
concepts or language from sec.23.104, e.g., service packaging requirements. SWBT 
further noted that, "SWBT objected to those requirements then, and still 
maintains the same objections today." The commission notes SWBT's past and 
present objections to sec.23.104, but maintains that an application form that 
ignored the requirements of a controlling substantive rule would not provide the 
commission with adequate information. 
As published, subsections (h)(4), (i)(3), and (k)(3) contained language 
permitting the filing of the staff recommendation to suspend, docket, or reject 
an application to be filed on or before the intervention deadline. For purposes 
of clarification, subsections (h)(4) and (i)(3) are now amended to permit the 
filing of staff recommendations on or before 15 days after the filing date of 
the application. Subsection (k)(3) has been amended to permit the filing of 
staff recommendations on or before 25 days after the filing date of the 
application. 
In addition, subsection (k)(3) established that the published notice shall state 
the intervention deadline, which may be no earlier than nine days following 
publication of notice in the Texas Register. For purposes of clarification, this 
section has now been modified to establish that the intervention deadline may be 
no earlier than 15 days following publication of notice. 
Subsection (l)(4) delineates the procedures for review of applications 
requesting price increases for basic network services. The commission adds 
clarifying language in subsection (l)(4) to establish a deadline for staff 
recommendation, which shall be no earlier than five days following the 
intervention deadline.
Regarding the application form, the commission revised the list of categories to 
include all foreseeable methods by which an electing company could file a 
sec.23.25 application. The form was also amended to provide for a description of 
the affected service and any proposed changes and to request that an electing 
ILEC identify the customers and competitors likely to be affected by the 
application. These changes were made for the purpose of clarification. 
In adopting this section, the commission makes other minor modifications for the 
purpose of clarifying its intent. All comments, including any not specifically 
referenced herein, were fully considered by the commission. 
This new rule is adopted under the Public Utility Regulatory Act, Texas 
Utilities Code Annotated sec.14.002 (Vernon 1998) (PURA), which provides the 
Public Utility Commission with the authority to make and enforce rules 
reasonably required in the exercise of its powers and jurisdiction, and 
specifically, PURA sec.sec.58.051 - 58.152, relating to basic network services, 
discretionary services and competitive services. 
Cross Reference to Statutes: Public Utility Regulatory Act sec.sec.14.002, 
58.051 - 58.152. 

sec.23.25. Procedures Applicable to Chapter 58-Electing Incumbent Local Exchange 
Companies (ILECs).
(a) Purpose. The purpose of this section is to establish expedited procedures 
for a Chapter 58 electing ILEC to introduce a new service or to modify the rates 
or tariff terms for an existing service. 
(b) Application. This section applies to an incumbent local exchange company 
that is regulated pursuant to the Public Utility Regulatory Act (PURA) Chapter 
58. 
(c) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) Basic network service - This term has the meaning assigned in PURA sec.58. 
(2) Competitive service - This term has the meaning assigned in PURA sec.58. 
(3) Electing incumbent local exchange company (ILEC) - An ILEC that has filed 
the election referenced in PURA sec.58. 
(4) Existing discretionary service - This term has the meaning assigned in PURA 
sec.58. An existing discretionary service had a commission-approved rate in 
existence on September 1, 1995. 
(5) Incumbent local exchange company (ILEC) - An incumbent local exchange 
company is a local exchange company that had a certificate of convenience and 
necessity in existence on September 1, 1995. 
(6) Long run incremental cost (LRIC) - This term has the meaning assigned in 
sec.23.91(c)(16) of this title (relating to Long Run Incremental Cost 
Methodology for Dominant Certificated Telecommunications Utility (DCTU) 
Services). 
(7) New service - This term has the meaning assigned in sec.23.26(b)(1) of this 
title (relating to New and Experimental Services). The term new service shall 
include a discretionary service for which no rate was in effect on September 1, 
1995. 
(d) General provisions. 
(1) Tariffs and notices shall be written in plain language, shall contain 
sufficient detail to give customers and affected parties adequate notice of the 
filing, and shall conform to the requirements of sec.23.24(c), (d), (f), and (g) 
of this title (relating to Form and Filing of Tariffs). If an application 
contains material deficiencies, all time frames set forth in the rule shall be 
adjusted day-for-day until such deficiencies are cured.
(2) Rates and terms for a package of services that contains a basic network 
service shall be governed by the procedures found in subsection (k) and (l) of 
this section. 
(3) Rates and terms for a package containing discretionary services and 
competitive services but no basic network service shall be governed by the 
procedures found in subsections (i) and (j) of this section. 
(4) A local exchange company that does not elect to be regulated pursuant to 
PURA Chapter 58 may not exercise the pricing flexibility available to an 
electing ILEC even if the local exchange company concurs in a tariff of an 
electing ILEC. 
(5) If commission staff recommends rejection of an application, an electing ILEC 
may request docketing. 
(6) The commission may suspend the effective date of a tariff change proposed 
under this section for 120 days after the proposed effective date. If an 
application is docketed, the operation of the proposed tariff shall be 
automatically suspended to a date 120 days after the applicant has filed all of 
its direct testimony and exhibits, or 155 days after the proposed effective 
date, whichever is later. 
(e) Notice. Semi-annually, an electing ILEC shall notify affected persons, 
either by bill insert, bill message, or direct mail, that proposed changes in 
the rates or terms of service are regularly published in the Texas Register 
through the Office of the Secretary of State. Such notification shall also 
appear in the public information pages of all telephone directories published in 
Texas. The notification shall identify the Internet address for the Texas 
Register (www.sos.state.tx.us) and shall provide a toll-free phone number for 
affected persons to request direct notice from an electing ILEC of proposed 
changes in the rates or terms of service. For purposes of notice, affected 
persons include the applicant's Texas customers, persons registered with the 
commission to offer long distance service, and persons certified by the 
commission to provide local exchange telephone service. 
(f) Proprietary or confidential information. 
(1) Information filed pursuant to this rule is presumed to be public 
information. An electing ILEC shall have the burden of establishing that 
information filed pursuant to this rule is proprietary or confidential.
(2) Nothing in this subsection shall be construed to change the presumption that 
information filed pursuant to this rule is public information. An electing ILEC 
that intends to rely upon data it purports is proprietary or confidential in 
support of an application made pursuant to this section shall submit one copy of 
the proprietary or confidential data to the Office of Regulatory Affairs subject 
to a commission-approved protection agreement. An electing ILEC that intends to 
rely upon proprietary or confidential data has the burden of providing such data 
on the same date the associated tariff sheets are filed. In the event an 
electing ILEC's proprietary or confidential data is not provided with the 
associated tariff sheets, the procedural schedule shall be adjusted day-for-day 
to reflect the number of days the proprietary or confidential data is delayed. 
(g) Establishment of a long run incremental cost floor. Establishment of a LRIC 
floor requires commission approval of a cost study prepared by an electing ILEC 
pursuant to the standards in sec.23.91 of this title. After commission approval 
of a LRIC floor for a particular service, an electing ILEC may change the rates 
of that service in accordance with the procedures in this section. The 
procedures in this section may not be available to an electing ILEC for a 
service that does not have a LRIC floor. An electing ILEC that has 5.0% or fewer 
of the total access lines in this state may adopt the cost, if determined 
through a LRIC study based on sec.23.91 of this title, for the same or 
substantially similar services offered by a large ILEC without the requirement 
of presenting LRIC studies of its own. 
(h) Price changes for competitive services. 
(1) After commission approval of a LRIC floor, an electing ILEC may exercise 
pricing flexibility or may change the price of a competitive service. An 
electing ILEC may set the price for a competitive service at any level above the 
long run incremental cost of the service, except that the price of the service 
may not be increased by an electing ILEC in a geographic area in which the 
service or a functionally equivalent service is not readily available from 
another provider. 
(2) An electing ILEC may file one or more revised tariff sheets to introduce new 
or modified rates or terms for competitive services. The tariff sheets shall be 
accompanied by a commission-approved application. The tariff sheets shall be 
received and effective on an interim basis, subject to refund, the day following 
the filing or on a later date designated by the electing ILEC. 
(3) The commission shall cause notice of the application to be published in the 
Texas Register. The notice shall state the intervention deadline, which shall be 
no earlier than five days following publication.
(4) On or before 15 days after the filing date of the application, commission 
staff may file a recommendation to suspend, docket, or reject the electing 
ILEC's application. If either a request for intervention or a recommendation to 
docket is filed, the expedited administrative procedures in this subsection 
shall no longer apply. The tariff sheets shall remain effective, on an interim 
basis, unless an order is issued to change the status. 
(5) If neither an intervention request nor a commission staff recommendation to 
suspend, docket, or reject is timely filed, the commission shall issue an order 
approving the tariff sheets. 
(i) Price changes for existing discretionary services. 
(1) After commission approval of a LRIC floor, an electing ILEC may exercise 
pricing flexibility or may change the price of an existing discretionary service 
within the range of the LRIC floor and the price in effect on September 1, 1995, 
by following the procedures in this subsection.
(2) An electing ILEC shall file a commission-approved application to introduce 
new or modified rates or terms for an existing discretionary service. On the 
same date, an electing ILEC shall file one or more tariff sheets to introduce 
new or modified rates or terms for services with the commission-approved 
application and all data necessary to support the application shall accompany 
the tariff sheets. 
(3) The commission shall cause the notice of the application to be published in 
the Texas Register. The published notice shall state the intervention deadline, 
which shall be no earlier than five days following publication of notice. On or 
before 15 days after the filing date of the application, commission staff may 
file a recommendation to suspend, docket, or reject the electing ILEC's 
application. If either a request for intervention or a recommendation to docket 
is filed, the expedited administrative procedures in this subsection shall no 
longer apply. If neither an intervention request nor a staff recommendation to 
suspend, docket, or reject the application is filed, the tariff sheets shall be 
approved by the commission effective the day following the intervention 
deadline.
(j) Establishment of prices for new discretionary services. An application to 
establish a price for a new discretionary service shall be administered in the 
same manner as price changes for existing discretionary services, except that in 
addition to establishing the long run incremental cost of a new service, an 
electing ILEC shall file information which complies with the commission's 
requirements for establishment of a price ceiling. After commission approvals of 
both a LRIC floor and a price ceiling are obtained, an electing ILEC may 
flexibly price a new service within the range of the LRIC floor and the price 
ceiling by following the procedures in subsection (i) of this section. 
(k) Price decreases for basic network services. 
(1) After commission approval of a LRIC floor, an electing ILEC shall follow the 
procedures in this subsection to decrease a rate for a basic network service or 
to change the tariff terms of a basic network service.
(2) An electing ILEC shall file a commission-approved application to decrease 
the rate for or change the tariff terms of a basic network service. On the same 
date, an electing ILEC shall file one or more tariff sheets to decrease a rate 
for or change the terms of a basic network service with the commission-approved 
application and all data necessary to support the application shall accompany 
the tariff sheets.
(3) The commission shall cause a notice of the application to be published in 
the Texas Register. The published notice shall state the intervention deadline, 
which shall be no earlier than 15 days following publication of notice. On or 
before 25 days after the filing date of the application, commission staff may 
file a recommendation to suspend, docket, or reject the application. If either a 
request for intervention or a recommendation to docket is filed, the expedited 
administrative procedures in this subsection shall no longer apply. If neither 
an intervention request nor a staff recommendation to suspend, docket, or reject 
the application is filed, the tariff sheets shall be approved by the commission 
effective the day following the intervention deadline.
(l) Price increases for basic network services. 
(1) For a four-year period following Chapter 58 election, an increase in the 
rate for a basic network service is permitted only after commission approval and 
only within the parameters set forth in PURA sec.sec.58.054 through 58.057 and 
this rule. Changes to tariff terms require commission approval as set forth in 
PURA sec.58.052(b). 
(2) An electing ILEC shall file an application on the commission-approved form 
to increase the rate for a basic network service. The application shall refer to 
this section, shall be accompanied with sufficient documentary support to 
demonstrate that the rate adjustment meets the criteria prescribed in PURA 
Chapter 58, shall describe the increase, and shall identify, with specificity, 
the customers and competitors to be affected by the electing ILEC's application. 
The application shall include a copy of the text of any proposed notice to 
customers. The proposed notice to customers shall meet the criteria prescribed 
in PURA sec.58.059 and sec.53.103. The application shall also state the electing 
ILEC's preferred effective date, which shall be no earlier than 90 days after 
completion of notice. 
(3) On the same date that the application is filed, an electing ILEC shall file 
one or more tariff sheets to increase the rate for a basic network service with 
the commission- approved application. All data necessary to support the 
application shall accompany the tariff sheets.
(4) The commission shall cause notice of the application to be published in the 
Texas Register. The published notice shall state the intervention deadline, 
which shall be no earlier than 40 days following publication of notice. After 
publication of notice in the Texas Register, the presiding officer shall 
establish a deadline for the filing of a staff recommendation, which shall be no 
earlier than five days following the intervention deadline.
(5) Within 15 days of filing of the application and revised tariff sheets, the 
presiding officer shall notify the applicant if material deficiencies exist in 
the application and if the proposed notice is inadequate.
(6) Within 50 days of filing of the application and revised tariff sheets, the 
applicant shall file an affidavit attesting to the fact that notice to customers 
was published in accordance with the requirements of PURA sec.58.059 and 
sec.53.103. The affidavit shall contain a copy of all notice given. 
(7) Following receipt of a request for intervention filed by an affected party, 
or on the recommendation of commission staff, or on the commission's own motion, 
the commission may suspend the effective date of the rate adjustment and may 
hold a hearing. After a review, the commission shall issue an order approving, 
modifying, or rejecting the rate adjustment if it is not in compliance with this 
rule and PURA sec.sec.58.056, 58.057 or 58.058. Any order modifying or rejecting 
the proposed rate adjustment shall specify why the proposed adjustment is not in 
compliance with the applicable provisions of PURA sec.sec.58.056, 58.057 or 
58.058 and the means by which the proposed adjustment may be brought into 
compliance. 
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.
Filed with the Office of the Secretary of State on April 16, 1998.
TRD-9805326
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: May 6, 1998
Proposal publication date: November 7, 1997
For further information, please call: (512) 936-7308

SUBCHAPTER H.Telephone
16 TAC sec.23.93
The Public Utility Commission of Texas adopts the repeal of sec.23.93 relating 
to Distance Learning, Information Sharing Programs, and Interactive Multimedia 
Communications. The repeal is adopted as published in the February 20, 1998 
issue of the Texas Register (23 Tex. Reg. 1462). On April 1, 1998, the 
commission adopted new sec.26.141 relating to Distance Learning, Information 
Sharing Programs, and Interactive Multimedia Communications. This adoption was a 
result of the reorganization of the commission's substantive rules. Due to this 
reorganization, sec.23.93 will be duplicative of the proposed new section in 
Chapter 26 of this title, relating to Substantive Rules Applicable to 
Telecommunications Service Providers, and therefore, no longer necessary. The 
repeal of sec.23.93 and the adoption of sec.26.141 are carried out under Project 
Number 18700. No party filed comments in response to the proposed repeal.
This repeal is adopted under the Public Utility Regulatory Act, Texas Utilities 
Code Annotated sec.14.002 (Vernon 1998) (PURA), which provides the Public 
Utility Commission of Texas with the authority to make and enforce rules 
reasonably required in the exercise of its powers and jurisdiction.
Cross Reference to Statutes: Public Utility Regulatory Act, sec.14.002.
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.
Filed with the Office of the Secretary of State on April 15, 1998.
TRD-9805310
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: May 5, 1998
Proposal publication date: February 20, 1998
For further information, please call: (512) 936-7308

CHAPTER 25.Substantive Rules Applicable to Electric Service Providers
SUBCHAPTER A.General Provisions
16 TAC sec.sec.25.1-25.4
The Public Utility Commission of Texas (commission) adopts new sec.sec.25.1, 
relating to Purpose and Scope of Rules; 25.2 relating to Cross-Reference 
Transition Provision; 25.3 relating to Severability Clause; and 25.4 relating to 
Statement of Nondiscrimination with no changes to the proposed text as published 
in the January 30, 1998 Texas Register (23 TexReg 697). Project Number 17709 has 
been assigned to these new rules. 
The commission is in the process of reorganizing its rules, located in Chapter 
23 of this title, to: (1) satisfy the requirements of the Appropriations Act, 
Article IX, Section 167 for all state agencies to review its rules; (2) repeal 
rules no longer needed; (3) update existing rules to reflect changes in the 
industries regulated by the commission; (4) do clean-up amendments made 
necessary by changes in law and commission organizational structure and 
practices; (5) reorganize rules into new chapters to facilitate future 
amendments and provide room for expansion; and (6) reorganize the rules 
according to the industry to which they apply. Chapter 25 has been established 
for all commission substantive rules applicable to electric service providers. 
The duplicative sections of Chapter 23 are repealed as each new section is 
adopted in Chapter 25. Sections 25.1 and 25.3 establish the commission's policy 
concerning the purpose, scope, and severability of its rules; sec.25.2 is to 
assist with cross-references to rule sections during the transition to the new 
chapters; and sec.25.4 establishes the commission's policy of non-discrimination 
for all utilities. 
The commission received no written comments on the proposed new rules.
These new rules are adopted under the Public Utility Regulatory Act, Texas 
Utilities Code Annotated sec.14.002 (Vernon 1998) which provides the commission 
with the authority to make and enforce rules reasonably required in the exercise 
of its powers and jurisdiction. 
Cross Reference to Statutes: Public Utility Regulatory Act sec.14.002.
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.
Filed with the Office of the Secretary of State on April 17, 1998.
TRD-9805375
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: May 7, 1998
Proposal publication date: January 30, 1998
For further information, please call: (512) 936-7308

CHAPTER 26.Substantive Rules Applicable to Telecommunications Service Providers
SUBCHAPTER A.General Provisions
16 TAC sec.sec.26.1-26.4
The Public Utility Commission of Texas (commission) adopts new sec.sec.26.1, 
relating to Purpose and Scope of Rules; 26.2 relating to Cross-Reference 
Transition Provision; 26.3 relating to Severability Clause; and 26.4 relating to 
Statement of Nondiscrimination with no changes to the proposed text as published 
in the January 30, 1998 Texas Register (23 TexReg 698). Project Number 17709 has 
been assigned to these new rules. 
The commission is in the process of reorganizing its rules, located in Chapter 
23 of this title, to: (1) satisfy the requirements of the Appropriations Act, 
Article IX, Section 167 for all state agencies to review its rules; (2) repeal 
rules no longer needed; (3) update existing rules to reflect changes in the 
industries regulated by the commission; (4) do clean-up amendments made 
necessary by changes in law and commission organizational structure and 
practices; (5) reorganize rules into new chapters to facilitate future 
amendments and provide room for expansion; and (6) reorganize the rules 
according to the industry to which they apply. Chapter 26 has been established 
for all commission substantive rules applicable to telecommunications service 
providers. The duplicative sections of Chapter 23 are repealed as each new 
section is adopted in Chapter 26. Sections 26.1 and 26.3 establish the 
commission's policy concerning the purpose, scope, and severability of its 
rules; sec.26.2 is to assist with cross-references to rule sections during the 
transition to the new chapters; and sec.26.4 establishes the commission's policy 
of non-discrimination for all utilities. 
The commission received no written comments on the proposed new rules.
These new rules are adopted under the Public Utility Regulatory Act, Texas 
Utilities Code Annotated sec.14.002 (Vernon 1998) which provides the commission 
with the authority to make and enforce rules reasonably required in the exercise 
of its powers and jurisdiction. 
Cross Reference to Statutes: Public Utility Regulatory Act sec.14.002.
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.
Filed with the Office of the Secretary of State on April 17, 1998.
TRD-9805376
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: May 7, 1998
Proposal publication date: January 30, 1998
For further information, please call: (512) 936-7308

SUBCHAPTER G.Advanced Services
16 TAC sec.26.141
The Public Utility Commission of Texas adopts new sec.26.141, Distance Learning, 
Information Sharing, and Interactive Multimedia Communications. The section is 
adopted with changes to the proposed text as published in the February 20, 1998 
issue of the Texas Register (23 TexReg 1463). This section is adopted under 
Project Number 18700.
At the commission's February 5, 1998 open meeting, staff presented a proposal 
for publication to repeal sec.23.93 of this title (relating to Distance 
Learning, Information Sharing, and Interactive Multimedia Communications) and 
adopt sec.26.141, with new language, in its place. The commission approved this 
proposal as published. Because of the time-sensitive nature of this rule, the 
commission waived its normal 30-day comment period, allowing a 10-day comment 
period instead. No party requested a public hearing, and the commission did not 
conduct a public hearing for this rulemaking. 
The specific changes to this rule add new subsection (c) (modified from the 
proposed text) and the phrase "most recent" to subsection (d) regarding tariff 
filing. This language is designed to clarify the combination of state and 
federal discount programs for qualifying schools, libraries, and other consortia 
pursuant to this rule and sec.23.107 of this title (relating to Educational 
Percentage Discount Rates or E-Rates). The commission makes this change based on 
the recent ruling by the Federal Communications Commission (FCC), In the Matter 
of Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Fourth 
Order on Reconsideration (December 30, 1997). In that order, the FCC determined 
that any federal discount should be applied prior to the application of any 
state discount. Therefore, the new language implements this ruling, and directs 
that federal educational percentage discount rates (E-rates) be applied prior to 
any applicable state discount. The new language also clarifies that the 
combination of discounts applies only to the 25% discount offered pursuant to 
Public Utility Regulatory Act (PURA), Chapter 57 (relating to Distance Learning 
and Information Sharing). Additionally, the new language specifies that the 
state discount shall be taken from the rate that includes the federal discount, 
if applicable, not the full tariffed rate. 
Parties should note that the commission considered a related matter in 
Investigation into the Interaction of Federal and State Discounts for Schools 
and Libraries Pursuant to Chapters 58 & 59 of PURA, Project Number 18723. At its 
open meeting on February 25,1998, the commission determined that the rates 
offered pursuant to PURA Chapter 58 (relating to Incentive Regulation) and 
Chapter 59 (relating to Infrastructure Plan) qualify as the "lowest 
corresponding price" for the purposes of the federal E-Rates program. 
Three parties filed comments to the proposed rule: Southwestern Bell Telephone 
Company (SWBT), General Services Commission (GSC), and Texas Telephone 
Association (TTA). SWBT and TTA supported the proposed amendments, but suggested 
that the commission clarify the interaction of the discounts. GSC supported the 
rule, but asked the commission to consider policy implications associated with 
the application of the discounts. 
SWBT generally supported the rule and the amendment to the original sec.23.93 to 
the extent that it was consistent with the FCC's Fourth Order on 
Reconsideration. SWBT noted that the method of combining discounts will allow 
Texas schools and libraries to receive the maximum amount of federal universal 
service support. The commission agrees that this statement is consistent with 
both state and federal goals to optimize the discounts available to schools and 
libraries. SWBT commented that in some instances the discounts provided for in 
this rule cannot be calculated subsequent to sec.23.107. For example, in 
addition to providing a 25% discount for any telecommunications services used 
predominantly for distance learning or information sharing, the proposed rule, 
in subsection (f), provides for the purchase of T-1 service at 105% of long-run 
incremental cost (LRIC). As such, since this rate is not expressed as a 
"percent-off discount," it cannot be used to calculate the net price after the 
federal discount has been applied. SWBT noted that although it would be rare for 
an entity to request service pursuant to subsection (f), since the rates offered 
pursuant to Chapter 58 or 59 are generally preferred, the commission 
nevertheless should clarify that stacking would not apply under this subsection.
To address this issue, the commission modifies the proposed rule language by 
adding the words "subsection (d) or (e)" to the proposed subsection (c) 
language. Additionally, the commission adds subsection (c)(2) in order to 
specify that the federal discount obtained under sec.23.107 would apply to the 
rates offered in subsection (f), and that a subsequent state discount would not 
apply. The commission finds that this change will address SWBT's concern and 
clarify that combining discounts pursuant to this section applies only to the 
25% discount offered under Chapter 57 of PURA. 
TTA commented that the commission should clarify the phrase "any tariffed 
service" and expressed a concern similar to that of SWBT regarding the stacking 
of multiple state discounts (under subsections (d) and (f) of this section). As 
previously noted, the commission addresses this concern by modifying the 
proposed rule language to clarify that combining federal and state discounts 
applies only to those rates offered at a 25% discount, and not the rates 
provided through a customer-specific contract. 
TTA also commented that this rule would impose an additional discount that may 
go beyond LRIC and result in subsidizing the schools and libraries, thereby 
violating PURA sec.57.023. TTA pointed out that many of its members offer 
discounts pursuant to Chapter 57 which are analogous to the rates offered by 
electing companies pursuant to PURA Chapters 58 and 59. Because these rates 
already incorporate a discount, TTA argued that placing an additional discount 
may result in subsidizing schools and libraries. 
Again, to the extent that local exchange companies (LECs) offer rates that are 
LRIC-based pursuant to a customer-specific contract under this section, the 
commission finds that discounts will not be further stacked. While the 
commission is encouraged that LECs not subject to incentive regulation offer 
rates comparable to those offered by larger companies, such as SWBT, the 
commission notes that this rule does not require carriers to stack discounts to 
a rate offered under a customer-specific contract. As modified subsection (c) 
delineates, the combining of federal and state discounts applies only to rates 
that are eligible for an additional 25% discount. 
TTA raised an additional concern regarding recovery of service-specific LRIC and 
avoidance of subsidization of an educational institution that is not reflected 
in this new rule. Subsection (g) (former subsection (f) in sec.23.93) specifies 
that a reduced rate, other than that offered at a 25% discount, shall recover 
service-specific LRIC. 
The commission notes that this provision has not changed in the new rule. The 
only change is with respect to the combining of discounts under subsections (d) 
and (e). 
GSC noted that in proposing the new subsection, the commission is following the 
FCC's ruling regarding the stacking of discounts; it also noted that whatever 
the order of discounts, the cost to schools and libraries would be the same. 
GSC, however, was concerned that if the federal discount is applied first, the 
LECs will provide a smaller, non-reimbursable state discount. GSC argued that 
this would create an unintended windfall for the LECs, and eventually result in 
a diluted federal Universal Service Fund (USF). The lower discount thus provided 
by the electing companies, GSC commented, would disrupt the legislative (or 
regulatory) bargain made by the LECs to provide a certain level of discounts to 
the schools and libraries in exchange for incentive regulation. 
The commission notes two concerns with respect to GSC's comments. First, the 
commission reinforces its position that the purpose of this amendment is to 
implement the FCC's policy for combining federal and state discounts. The 
commission declines to enact a rule that is counter to this mandate. Second, the 
commission points out that this rule addresses only the rates offered pursuant 
to Chapter 57, which were enacted prior to the legislation establishing 
incentive regulation. Thus, these rates are not part of the "regulatory bargain" 
referred to by GSC. Rather, these rates are applicable to all dominant carriers, 
regardless of whether they elect incentive regulation. As previously noted, the 
interaction of the federal discounts with the state rates offered by those LECs 
electing incentive regulation was addressed in Investigation into the 
Interaction of Federal and State Discounts for Schools and Libraries Pursuant to 
Chapters 58 & 59 of PURA, Project Number 18723. 
Although no party specifically commented about the proposed addition of the 
phrase "most recent" to subsection (d) regarding tariff filings, the commission 
reiterates that within 30 days after the effective date of this rule, carriers 
are required to file a revised tariff reflecting the provisions adopted in this 
rule. 
This new section is adopted under the Public Utility Regulatory Act, Texas 
Utilities Code Annotated sec.14.002 (PURA), which provides the Public Utility 
Commission of Texas with the authority to make and enforce rules reasonably 
required in the exercise of its powers and jurisdiction.
The commission also adopts this new section pursuant to PURA sec.sec.57.021 - 
57.025. 
Cross Reference to Statutes: Public Utility Regulatory Act, sec.sec.14.022; 
57.021; 57.022; 57.023; 57.024; 57.025. 

sec.26.141. Distance Learning, Information Sharing Programs, and Interactive 
Multimedia Communications.
(a) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) Distance learning-Instruction, learning, and training that is transmitted 
from one site to one or more sites by telecommunications services that are used 
by an educational institution predominantly for such instruction, learning, or 
training, including video, data, voice, and electronic information. 
(2) Educational institution-Accredited primary or secondary schools owned or 
operated by state and local government entities or by private entities; 
institutions of higher education as defined by the Education Code, 
sec.61.003(13); the Texas Education Agency, its successors and assigns; regional 
education service centers established and operated pursuant to the Education 
Code, Chapter 8; and the Texas Higher Education Coordinating Board, its 
successors and assigns. 
(3) Information sharing program-Instruction, learning, and training that is 
transmitted from one site to one or more sites by telecommunications services 
that are used by a library predominantly for such instruction, learning, or 
training, including video, data, voice, and electronic information. 
(4) Interactive multimedia communications-Real-time, two-way, interactive voice, 
video, and data communications conducted over networks that link geographically 
dispersed locations. This definition includes interactive communications within 
or between buildings on the same campus or library site. 
(5) Library-Public library or regional library system as defined by Government 
Code, sec.441.122, or a library operated by an institution of higher education 
or a school district. 
(b) Telecommunications services eligible for reduced rates.
(1) Any tariffed service, if used predominantly for distance learning purposes 
by an educational institution or information sharing program purposes by a 
library, is eligible for reduced rates, as set forth in this section. 
(2) A service is used predominantly for distance learning purposes by an 
educational institution or information sharing program purposes by a library 
when over 50% of the traffic carried, whether in video, data, voice, and/or 
electronic information, is identified for such use pursuant to the requirements 
of subsection (d)(1) of this section. 
(c) Coordination with federal discounts. 
(1) For any discount received pursuant to sec.23.107 of this title (relating to 
Educational Percentage Discount Rates (E-Rates)), an eligible school, library or 
consortia may apply such discount prior to any discount received under 
subsection (d) or (e) of this section. Any subsequent discount received under 
this section shall apply to the discounted E-Rate and not the tariffed rate. 
(2) Any discount received under sec.23.107 of this title will be applied 
subsequent to the rate obtained for services offered pursuant to subsection (f) 
of this section. For purposes of determining the rate to which a discount 
pursuant to sec.23.107 of this title will apply, the rates offered under 
subsection (f) of this section qualify as the lowest corresponding price. 
(d) Process by which an educational institution or library qualifies for reduced 
rates other than through a customer-specific contract.
(1) Affidavit. To qualify for a discounted rate, an educational institution or 
library, as defined in subsection (a) of this section, must provide a sworn 
affidavit to the dominant certificated telecommunications utility account 
representative or, if no account representative is assigned, to the business 
office of the utility. 
(A) The affidavit shall: 
(i) specify the requested service(s) to be discounted; 
(ii) quantify, if applicable, the requested service(s) to be discounted; 
(iii) state that the discounted service(s) will be used predominantly for 
distance learning purposes or information sharing program purposes; and
(iv) specify the intended use(s) of the discounted service(s).
(B) The affidavit shall be signed by the administrative head of the institution 
(e.g., principal, president, chancellor) or library, or a designee given the 
task and authority to execute the affidavit on behalf of the educational 
institution or library requesting the discounted rates.
(C) No other special form needs to be provided as part of the application 
process. 
(D) The educational institution or library shall provide an affidavit each time 
it orders services that will be used predominantly for distance learning 
purposes or information sharing program purposes. 
(2) Tariff filing. Within 30 days after the most recent effective date of this 
section, each dominant certificated telecommunications utility as of September 
1, 1995 shall file a distance learning and information sharing program tariff, 
providing for a 25% discount on any service used predominantly for distance 
learning or information sharing program purposes, other than a service offered 
pursuant to a customer-specific contract. The tariff filing shall concern only 
the implementation of this section and not affect any of the utility's other 
rates or services not utilized for distance learning or information sharing 
program purposes. Once the tariff goes into effect, any educational institution 
or library subsequently filing an affidavit, as described in paragraph (1) of 
this subsection, shall be eligible to receive the requested service at the 
discounted rate. 
(e) Interactive multimedia communications services. Any dominant certificated 
telecommunications utility that provides interactive multimedia communications 
services may file a tariff to establish rates at levels necessary, using sound 
rate-making principles, to recover costs associated with providing such services 
to educational institutions or libraries. Those interactive multimedia 
communications services used predominantly for distance learning or information 
sharing program purposes, however, shall qualify for a 25% discount pursuant to 
subsection (d) of this section. 
(f) Customer-specific contracts. When a service is provided to an educational 
institution or library pursuant to sec.23.27(c) of this title (relating to Rate-
Setting Flexibility for Services Subject to Significant Competitive Challenges), 
the dominant certificated telecommunications utility shall price those 
components of the service used predominantly for distance learning or an 
information sharing program no less than 105%, and no greater than 110%, of the 
customer-specific long-run incremental cost. 
(g) Cost determination. Not withstanding subsections (d) and (e) of this 
section, once the commission develops cost determination rules for 
telecommunications services generally, a reduced rate approved under this 
section shall recover the service-specific long-run incremental costs. In the 
case of interactive multimedia communications services, however, the commission 
may allow a rate to be set lower than the long-run incremental cost of a 
specific service if such is determined to be in the public interest. 
(h) Filing requirements. Each dominant certificated telecommunications utility 
shall file an annual report with the commission on September 1 of each year 
indicating the demand for distance learning or information sharing program 
services provided under the distance learning or information sharing program 
tariff. The report shall include the following: 
(1) the type of institution(s) or libraries provided service(s);
(2) type(s) of service(s) provided to each institution or libraries; and 
(3) quantity of the service(s) provided.
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.
Filed with the Office of the Secretary of State on April 15, 1998.
TRD-9805309
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: May 5, 1998
Proposal publication date: February 20, 1998
For further information, please call: (512) 936-7308

PART IV. Texas Department of Licensing and Regulation
CHAPTER 68. Architectural Barriers
16 TAC sec.sec.68.20, 68.30, 68.31, 68.70, 68.80, 68.90
The Texas Department of Licensing and Regulation adopts amendments to 
sec.sec.68.20, 68.30, 68.31, 68.70, 68.80, and 68.90, concerning the 
Architectural Barriers Administrative Rules. Sections 68.20, 68.30, 68.31, 
68.70, 68.80 and 68.90 are adopted with changes to the proposed text as 
published in the November 14, 1997, issue of the Texas Register (22 TexReg 
11043). Proposed changes to sec.68.62 will not be adopted at this time. 
The changes in sec.68.20 establish limitations involving projects which are 
completed when construction documents are submitted for review. The department 
considers submittal after completion of construction worthy of enforcement 
related action and therefore are not eligible for review by a contract provider. 
The changes in sec.68.30 exempts limited and restricted occupancy spaces and 
clarifies jurisdictional areas of the Department. The department received 
several comments in opposition to this proposed amendment because it was either 
vague or that the exemptions had been proposed but not yet adopted by the 
Department of Justice. After review the Department determined that sec.68.30(7) 
was broadly stated and appeared to exempt a plethora of facilities not intended 
for exemption. The Department has reworded sec.68.30(7) to clarify that the 
exemption applies only to chemical manufacturing facilities. 
One change in sec.68.31 would have allowed for a variance to be considered after 
construction was completed, based upon preconstruction conditions, and a late 
variance fee would have applied. Based on comments received the Department has 
decided to withdraw this proposed rule change at this time. The other change in 
sec.68.31 would have deleted the reference regarding deficiencies noted after 
completion to be addressed as an enforcement issue as well as the cross 
reference to the section regarding enforcement authority. The Department has 
decided to keep the reference regarding deficiencies noted after completion to 
be addressed as an enforcement issue, but will delete the reference to sec.68.91 
because this section was previously repealed. 
The Department has decided not to add language in sec.68.62 relating to the 
results of inspections being provided to the respective design professionals 
because another request for possible rule change was received by the Department 
which entails providing copies of plan review results to building owners. The 
Department will consider these two requests at a later date. 
The changes in sec.68.70 require registrants to inform the Department of the 
name and address of the building owner which gives the Department essential 
information on responsible parties as well as clarifying that registrants may 
not submit construction documents to contract providers after completion of 
construction. 
One change in sec.68.80 would have added a late variance application fee. Since 
the Department is withdrawing the proposed change to consider the allowance of a 
variance after construction is completed, the addition of a late variance 
application fee is also withdrawn. 
The other changes in sec.68.80 establish a late review fee to be imposed when 
construction documents are submitted after completion of a subject project and 
increases the inspection fee for state leases. The Department feels the late 
review fee is necessary to justify expediting plan reviews of subject projects 
when construction documents are not submitted until after construction is 
complete. The increase in the state lease inspection fee in sec.68.80 is to 
justify staff time and recoup expenses associated with expediting state lease 
inspections as required by the amendment to Article 9102 which requires 
inspections prior to occupying a state lease property. 
The change in sec.68.90 conforms the rule to the statute and rules for the Texas 
Commission of Licensing and Regulation, Article 9100 and 16 Texas Administrative 
Code, Chapter 60. 
The Department received comments for and against the proposed amendments from 
the Texas Commission on Jail Standards; Coalition of Texans with Disabilities; 
ADAPT of Texas; Disability Policy Consortium; Texas Society of Architects; 
Advocacy, Incorporated; Accessibility Design Associates; Texas Chemical Council; 
Resource Utilization Network Center for Independent Living; and an Independent 
Contract Provider and member of the State Independent Living Council. 
The Department held a public hearing on January 6, 1998 and received comments 
from several individuals representing the Coalition of Texans with Disabilities; 
ADAPT of Texas; Texas Society of Architects, Advocacy, Incorporated; and an 
Independent Contract Provider and member of the State Independent Living 
Council. All comments were considered in reviewing and revising these amendments 
for adoption. 
The amendments will function by increasing program integrity.
The amendments are adopted under Texas Revised Civil Statutes Annotated, article 
9102 (Vernon 1997), which authorizes the Texas Department of Licensing and 
Regulation to promulgate and enforce a code of rules and take action necessary 
to assure compliance with the intent and purpose of the Act. 
The Articles affected by the amendments are Texas Revised Civil Statutes 
Annotated, article 9102 (Vernon 1997) and Texas Revised Civil Statutes 
Annotated, article 9100 (Vernon 1991). 

sec.68.20. Registration - Submittal of Construction Documents. 
(a) Construction documents covering each subject building or facility with an 
estimated construction cost of $50,000 or more shall be submitted to the 
department or contract provider prior to commencement of construction. If 
construction documents are not submitted prior to completion of construction, 
they shall be submitted to the department and may not be submitted to a contract 
provider. 
(b)-(f) (No change.) 

sec.68.30. Exemptions. 
The following buildings, facilities, or spaces are exempted from the Act: 
(1) Buildings or facilities owned and operated by the federal government ; 
(2) Construction Sites. Structures, sites, and equipment directly associated 
with the actual processes of construction, including, but not limited to, 
scaffolding, bridging, materials hosts, materials storage, construction 
trailers, portable toilet units provided for use exclusively by construction 
personnel on a construction site; 
(3) Raised Security Areas. Raised areas used primarily for purposes of security, 
life safety, or fire safety, including, but not limited to, observation 
galleries, prison guard towers, fire towers, or life guard stands; 
(4) Limited Access Spaces. Spaces accessed only by ladders, catwalks, crawl 
spaces, very narrow passageways, or tunnels; 
(5) Equipment Spaces. Spaces frequented primarily by personnel for maintenance, 
repair, or periodic monitoring of equipment. Such spaces, include but are not 
limited to, elevator pits, elevator penthouses, mechanical, electrical, or 
communications equipment rooms, piping or equipment catwalks, petroleum and 
chemical processing and distribution structures, electric substations and 
transformer vaults, environmental treatment structures, and highway and tunnel 
utility facilities. 
(6) Single Occupant Structures. Single occupant structures accessed only by 
passageways below grade or elevated above grade, including but not limited to, 
toll booths that are accessed only by underground tunnels.
(7) Restricted Occupancy Spaces. Vertical access (elevators and platform lifts) 
is not required for the second floor of two-story control buildings located 
within a chemical manufacturing facility where the second floor is restricted to 
employees and does not contain common areas or employment opportunities not 
otherwise available in accessible locations within the same building. 

sec.68.31. Responsibilities of the Department - Inspections.
If the owner or the designated agent believes that application of the standards 
is irrelevant to the nature, use, or function of the building or facility or 
that compliance with any particular standard or specification is impracticable, 
a separate variance application shall be submitted for each building, facility 
or condition for determination prior to commencement of construction. 
(1) If a variance application is not submitted prior to construction and the 
building or facility owner or the designated agent believes a request is 
justified, such request shall be submitted as soon as possible following 
commencement of construction. 
(2) Variance requests received after construction has commenced shall be decided 
based on preconstruction conditions and circumstances.
(3) Variance requests will not be accepted after completion of construction 
(based on the recorded estimated completion date). Deficiencies noted after 
completion will be addressed as an enforcement issue. 
(4)-(10) (No change.) 

sec.68.70. Responsibilities of the Registrant-Construction Document Submittal.
(a)-(b) (No change.) 
(c) A completed Architectural Barriers Project Registration form and review fee 
shall accompany documents. Registrants must include on the Project Registration 
form the name of the building owner as defined by these rules and current 
address of the owner. 
(d)-(e) (No change.) 
(f) If construction documents were not submitted prior to commencement of 
construction, they shall be submitted for review as soon as possible following 
commencement of construction. Construction documents submitted after completion 
of construction may not be submitted to a contract provider. The Act shall be 
adhered to regardless of the time the construction documents were submitted for 
review. 
(g) (No change.) 

sec.68.80. Fees.
(a) (No change.) 
(b) Fee Schedule: 
Figure: 16 TAC sec.68.80(b) 
(c)-(f) (No change.) 
(g) When construction documents are submitted after completion of a subject 
project, the late review fee shall apply. 

sec.68.90. Sanctions - Administrative Sanctions or Penalties. 
If a person violates Texas Revised Civil Statutes Annotated, article 9102, or a 
rule, or order of the commissioner or commission relating to the Act, 
proceedings may be instituted to impose administrative sanctions and/or 
recommend administrative penalties in accordance with the Act or Texas Revised 
Civil Statutes Annotated, article 9100 and Chapter 60 (1994) of this title 
(relating to the Texas Department of Licensing and Regulation). 
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.
Filed with the Office of the Secretary of State on April 16, 1998.
TRD-9805350
Rachelle A. Martin 
Executive Director
Texas Department of Licensing and Regulation
Effective date: May 6, 1998
Proposal publication date: November 14, 1997
For further information, please call: (512) 463-7348

TITLE 22. EXAMINING BOARDS
PART IX. Texas State Board of Medical Examiners
CHAPTER 163.Licensure
22 TAC sec.163.1
The Texas State Board of Medical Examiners adopts an amendment to sec.163.1, 
concerning definitions, without changes to the proposed text as published in the 
March 20, 1998, issue of the Texas Register (23 TexReg 2937). 
The amendment is adopted to ensure continuity with the Medical Practice Act and 
to be consistent with current terminology. The amendment is also adopted to 
change the name of an organization throughout sec.163.1, to be consistent with 
the new name. The Advisory Board of Osteopathic Specialists has changed to the 
Bureau of Osteopathic Specialists. 
No comments were received regarding adoption of the amendment. 
The amendment is adopted under the Medical Practice Act, Texas Civil Statutes, 
Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical 
Examiners with the authority to make rules, regulations and bylaws not 
inconsistent with this Act as may be necessary for the governing of its own 
proceedings, the performance of its duties, the regulation of the practice of 
medicine in this state, and the enforcement of this Act. 
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805492
Bruce A. Levy, M.D., J.D.
Executive Director
Texas State Board of Medical Examiners
Effective date: May 10, 1998
Proposal publication date: March 20, 1998
For further information, please call: (512) 305-7016

22 TAC sec.sec.163.3, 163.5-163.7, 163.12, 163.14, 163.15
The Texas State Board of Medical Examiners adopts amendments to sec.sec.163.3, 
163.5-163.7, 163.12, 163.14, and 163.15, concerning licensure, without changes 
to the proposed text as published in March 6, 1998, issue of the Texas Register 
(23 TexReg 2216).
The amendments are adopted to ensure continuity with the Medical Practice Act 
and to be consistent with current terminology. The amendments are also adopted 
to change the name of an organization throughout Chapter 163, to be consistent 
with the new name. The Advisory Board of Osteopathic Specialists has changed to 
the Bureau of Osteopathic Specialists. 
No comments were received regarding adoption of the amendments. 
The amendments are adopted under the Medical Practice Act, Texas Civil Statutes, 
Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical 
Examiners with the authority to make rules, regulations and bylaws not 
inconsistent with this Act as may be necessary for the governing of its own 
proceedings, the performance of its duties, the regulation of the practice of 
medicine in this state, and the enforcement of this Act. 
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805493
Bruce A. Levy, M.D., J.D.
Executive Director
Texas State Board of Medical Examiners
Effective date: May 10, 1998
Proposal publication date: March 6, 1998
For further information, please call: (512) 305-7016

CHAPTER 175.Schedule of Fees and Penalties
22 TAC sec.175.2
The Texas State Board of Medical Examiners adopts an amendment to sec.175.2, 
concerning penalties, without changes to the proposed text as published in the 
March 20, 1998, issue of the Texas Register (23 TexReg 2938). 
The amendment is adopted to increase penalty fees for delinquent annual 
registration in order to be consistent with the Medical Practice Act, 
sec.3.10(b)(7).
No comments were received regarding adoption of the amendment. 
The amendment is adopted under the Medical Practice Act, Texas Civil Statutes, 
Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical 
Examiners with the authority to make rules, regulations and bylaws not 
inconsistent with this Act as may be necessary for the governing of its own 
proceedings, the performance of its duties, the regulation of the practice of 
medicine in this state, and the enforcement of this Act. 
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805494
Bruce A. Levy, M.D., J.D.
Executive Director
Texas State Board of Medical Examiners
Effective date: May 10, 1998
Proposal publication date: March 20, 1998
For further information, please call: (512) 305-7016

CHAPTER 183.Acupuncture
22 TAC sec.sec.183.2, 183.4, 183.8, 183.18, 183.20, 183.22
The Texas State Board of Medical Examiners adopts amendments to sec.sec.183.2, 
183.4, 183.8, 183.18, 183.20, and 183.22, concerning acupuncture, without 
changes to the proposed text as published in the March 6, 1998, issue of the 
Texas Register (23 TexReg 2218). 
The amendments are adopted to change the name of two organizations throughout 
Chapter 183, to be consistent with their new names. The National Commission for 
the Certification of Acupuncturists (NCCA) has changed to the National 
Certification Commission for Acupuncture and Oriental Medicine (NCCAOM). The 
National Accreditation Commission for Schools and Colleges of Acupuncture and 
Oriental Medicine (NACSCAOM) has changed to the Accreditation Commission for 
Acupuncture and Oriental Medicine (ACAOM). The definitions in sec.183.2 have 
been numbered to comply with current Texas Register requirements. The 
Professional Liability Claims Report found in sec.183.8(g)(9) is amended to 
reflect a change of address. The figure found in sec.183.20(b) is also amended 
to reflect the name change of the two organizations. 
No comments were received regarding adoption of the amendments. 
The amendments are adopted under the Medical Practice Act, Texas Civil Statutes, 
Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical 
Examiners with the authority to make rules, regulations and bylaws not 
inconsistent with this Act as may be necessary for the governing of its own 
proceedings, the performance of its duties, the regulation of the practice of 
medicine in this state, and the enforcement of this Act.
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805495
Bruce A. Levy, M.D., J.D.
Executive Director
Texas State Board of Medical Examiners
Effective date: May 10, 1998
Proposal publication date: March 6, 1998
For further information, please call: (512) 305-7016

22 TAC sec.183.17, sec.183.23
The Texas State Board of Medical Examiners adopts amendments to sec.183.17 and 
sec.183.23, concerning acudetox specialist and continuing auricular acupuncture 
education for acudetox specialists, without changes to the proposed text as 
published in the March 20, 1998, issue of the Texas Register (23 TexReg 2938). 
The amendments are adopted to change the name of two organizations throughout 
sec.183.17 and sec.183.23, to be consistent with their new names. The National 
Commission for the Certification of Acupuncturists (NCCA) has changed to the 
National Certification Commission for Acupuncture and Oriental Medicine 
(NCCAOM). The National Accreditation Commission for Schools and Colleges of 
Acupuncture and Oriental Medicine (NACSCAOM) has changed to the Accreditation 
Commission for Acupuncture and Oriental Medicine (ACAOM). 
No comments were received regarding adoption of the amendments. 
The amendments are adopted under the Medical Practice Act, Texas Civil Statutes, 
Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical 
Examiners with the authority to make rules, regulations and bylaws not 
inconsistent with this Act as may be necessary for the governing of its own 
proceedings, the performance of its duties, the regulation of the practice of 
medicine in this state, and the enforcement of this Act. 
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805496
Bruce A. Levy, M.D., J.D.
Executive Director
Texas State Board of Medical Examiners
Effective date: May 10, 1998
Proposal publication date: March 20, 1998
For further information, please call: (512) 305-7016

PART XIV. Texas Optometry Board
CHAPTER 277.Practice and Procedure
22 TAC sec.277.1
The Texas Optometry Board adopts an amendment to sec.277.1, with changes to the 
proposed text published in the March 6, 1998, issue of the Texas Register (23 
TexReg 2223). Board counsel has advised that the change made in the adopted rule 
is not substantive and does not require republication as a proposed amended 
rule. 
Rule 277.1 is required in order to inform licensees of specific instrumentation 
and procedures which will satisfy two specific requirements of the basic 
competency examination as required under the Texas Optometry Act, Texas Civil 
Statutes, Article 4552 sec.5.12. 
No comments were received regarding the adoption of the amendment.
The amendment is adopted under the provisions of Texas Civil Statutes, Article 
4552, sec.5.12 and sec.2.14. The Texas Optometry Board interprets sec.5.12 as 
authorizing it to interpret what instruments will satisfy a basic competency 
examination. The Board interprets sec.2.14 as authorizing the Board to adopt 
substantive and procedural rules for the regulation of the profession of 
optometry. No other code, statute or article is affected by this proposed 
amendment. 

sec.277.1.Complaint Procedures. 
(a)-(b) (No change.) 
(c) Investigation-Enforcement Committee. 
(1)-(3) (No change.) 
(4) Basic Competence Violations. 
(A) The omission of a single, essential finding shall be reason for an 
investigational hearing or informal conference. The following findings are 
essential in the initial examination of a patient: 
(i) Biomicroscopy examination (lids, cornea, sclera, etc), using a binocular 
microscope; 
(ii) Internal ophthalmoscopic examination (media, fundus, etc.), using an 
ophthalmoscope or biomicroscope with fundus condensing lenses; videos and 
photographs may be used only for documentation and consultation purposes but do 
not fulfill the internal ophthalmoscopic examination requirement;
(iii)-(vi) (No change.) 
(B)-(D) (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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805511
Lois Ewald
Executive Director
Texas Optometry Board
Effective date: May 10, 1998
Proposal publication date: March 6, 1998
For further information, please call: (512) 305-8502

CHAPTER 279.Interpretations
22 TAC sec.279.1
The Texas Optometry Board adopts an amendment to sec.279.1, without change to 
the proposed text published in the March 6, 1998, issue of the Texas Register 
(23 TexReg 2223).
Rule 279.1 is required in order to inform licensees and dispensers of contact 
lenses what information must be included on a fully-written contact lens 
prescription in order to comply with the Texas Optometry Act, Article 4552, 
Texas Civil Statutes, sec.1.02 and the new Texas Contact Lens Prescription Act, 
Article 4552-A, Texas Civil Statutes, adopted by the 75th Legislature. 
One comment was received from LensCrafters, who commented against the rule as 
proposed. The commenter objected to the use of the phrase "brand name" in 
describing the requirements of a fully-written contact lens prescription. The 
commenter noted that the Texas Contact lens Prescription Act does not require 
the inclusion of the brand name in a contact lens prescription. The Board 
disagrees with the comments. The Board is authorized by sec.1,02(3)(a) to define 
the elements of a fully-written contact lens prescription. Further, Subsections 
(1)(R) and (2)(J) of the rule as adopted authorize optometrists and therapeutic 
optometrists to include substitution language for brand names.
The amendment is adopted under the provisions of Texas Civil Statutes, Article 
4552, sec.1.02 and sec.2.14. The Texas Optometry Board interprets sec.1.02 as 
authorizing it to interpret what specifications must be placed on a contact lens 
prescription for purpose of dispensing. The Board interprets sec.2.14 as 
authorizing the Board to adopt substantive and procedural rules for the 
regulation of the profession of optometry. No other code, statute or article 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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805517
Lois Ewald
Executive Director
Texas Optometry Board
Effective date: May 10, 1998
Proposal publication date: March 6, 1998
For further information, please call: (512) 305-8502

22 TAC sec.279.3
The Texas Optometry Board adopts an amendment to sec.279.3, without change to 
the proposed text published in the March 6, 1998, issue of the Texas Register 
(23 TexReg 2225).
Rule 279.3 is required in order to inform licensees of how the Board interprets 
Section 5.07, relating to prescribing without examination, to clarify that the 
duplication of lenses within that context means a patient's spectacle lenses in 
order to comply with the Texas Optometry Act, Article 4552, Texas Civil 
Statutes. 
No comments were received regarding the adoption of the amendment. 
The amendment is adopted under the provisions of Texas Civil Statutes, Article 
4552, sec.5.07 and sec.2.14. The Texas Optometry Board interprets sec.5.07 as 
authorizing it to interpret the specifics regarding duplication of lenses by a 
licensee without performing an examination. The Board interprets sec.2.14 as 
authorizing the Board to adopt substantive and procedural rules for the 
regulation of the profession of optometry. No other code, statute or article 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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805512
Lois Ewald
Executive Director
Texas Optometry Board
Effective date: May 10, 1998
Proposal publication date: March 6, 1998
For further information, please call: (512) 305-8502

22 TAC sec.279.7
The Texas Optometry Board adopts an amendment to sec.279.7, with changes to the 
proposed text as published in the March 6, 1998, issue of the Texas Register (23 
TexReg 2226). Board counsel has advised that the change made in the adopted rule 
is not substantive and does not require republication as a proposed amended 
rule. 
Rule 279.7 is required in order to inform licensees when prescribing contact 
lenses of specific instrumentation and procedures which will satisfy two 
specific requirements of the basic competency examination required by the Texas 
Optometry Act, Texas Civil Statutes, Article 4552, sec.5.12, and that the 
issuance of a contact lens prescription must be in compliance with Article 4552, 
sec.1.02 and Article 4552-A, Texas Civil Statutes. 
No comments were received regarding the adoption of the amendment.
The amendment is adopted under the provisions of Texas Civil Statutes, Article 
4552, sec.1.02 and sec.5.12 and sec.2.14. The Texas Optometry Board interprets 
sec.5.12 as authorizing it to interpret what instruments will satisfy a basic 
competency examination and sec.1.02 as authorizing it to determine what 
constitutes a fully written contact lens prescription. The Board interprets 
sec.2.14 as authorizing the Board to adopt substantive and procedural rules for 
the regulation of the profession of optometry. No other code, statute or article 
is affected by this proposed amendment. 

sec.279.7.Board Interpretation Number Seven.
(a) In order to insure an adequate examination of a patient for whom an 
optometrist or therapeutic optometrist prescribes contact lenses, in the initial 
examination of the patient, the optometrist or therapeutic optometrist shall 
make and record, if possible, the following findings of the condition of the 
patient: 
(1) No change. 
(2) No change. 
(3) biomicroscopy examination (lids, cornea, sclera, etc.), using a binocular 
microscope. 
(4) internal ophthalmoscopic examination (media, fundus, etc.), using an 
ophthalmoscope or biomicroscope with fundus condensing lenses; videos and 
photographs may be used only for documentation and consultation purposes but do 
not fulfill the internal ophthalmoscopic examination requirement.
(5)-(10) (No change.) 
(b)-(e) (No change.) 
(f) When a fully written contact lens prescription is issued or released to a 
patient, the prescription must be written in compliance with:
(1) Section 1.02 of the Texas Optometry Act; 
(2) Section 279.1 of this title (relating to Board Interpretation Number One); 
and 
(3) the Texas Contact Lens Prescription Act, Article 4552-A, Texas Civil 
Statutes. 
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805514
Lois Ewald
Executive Director
Texas Optometry Board
Effective date: May 10, 1998
Proposal publication date: March 6, 1998
For further information, please call: (512) 305-8502

22 TAC sec.279.16
The Texas Optometry Board adopts new sec.279.16, without changes to the proposed 
text as published in the March 6, 1998, issue of the Texas Register (23 TexReg 
2226). 
Rule 279.16 is required in order to inform licensees and dispensers of contact 
lenses of how the Board interprets the use of contact lenses to determine a 
final contact lens prescription and charges therefor within the fitting fee to 
comply with the Texas Optometry Act, Texas Civil Statutes, Article 4552, 
sec.1.02 and Article 4552-A, Texas Civil Statutes, adopted by the 75th 
Legislature (The Texas Contact Lens Prescription Act). 
No comments were received regarding the adoption of the amendment.
The amendment is adopted under the provisions of Texas Civil Statutes, Article 
4552, sec.1.02 and sec.2.14. The Texas Optometry Board interprets sec.5.12 as 
authorizing it to interpret what constitutes a fully written contact lens 
examination including the use of contact lenses during the fitting process. The 
Board interprets sec.2.14 as authorizing the Board to adopt substantive and 
procedural rules for the regulation of the profession of optometry. No other 
code, statute or article 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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805515
Lois Ewald
Executive Director
Texas Optometry Board
Effective date: May 10, 1998
Proposal publication date: March 6, 1998
For further information, please call: (512) 305-8502

CHAPTER 280.Therapeutic Optometry
22 TAC sec.280.4
The Texas Optometry Board adopts an amendment sec.280.4, without changes to the 
proposed text as published in the March 6, 1998, issue of the Texas Register (23 
TexReg 2227).
Rule 280.4 is required in order to comply with Texas Government Code Annotated 
Sections 2110.001-2110.008 (Formerly Article 6252-33, Revised Statutes) which 
abolished advisory committees established on or before September 1, 1993, where 
no other adopted abolishment date was established. Since the fourth anniversary 
of the establishing statute's effective date has passed, the technical advisory 
committee as referenced in Rule 280.4 is abolished, requiring amendments to Rule 
280.4. 
No comments were received regarding the adoption of the amendment.
The amendment is adopted under the provisions of Texas Civil Statutes, Article 
4552, sec.1.03 and sec.2.14. The Texas Optometry Board interprets sec.1.03 as 
authorizing it to initially establish the technical advisory committee which has 
subsequently been abolished. The Board interprets sec.2.14 as authorizing the 
Board to adopt substantive and procedural rules for the regulation of the 
profession of optometry. No other code, statute or article 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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805518
Lois Ewald
Executive Director
Texas Optometry Board
Effective date: May 10, 1998
Proposal publication date: March 6, 1998
For further information, please call: (512) 305-8502

TITLE 25. HEALTH SERVICES
PART I. Texas Department of Health
CHAPTER 13. Health Planning and Resource Development
SUBCHAPTER B. Data Collection
25 TAC sec.sec.13.11, 13.13, 13.15, 13.17, 13.18 and 13.19
The Texas Department of Health (department) by majority vote of the Texas Board 
of Health (board) on April 17, 1998, enters this order finally adopting 
amendments to sec.sec.13.11, 13.13, 13.15, 13.17, 13.18 and 13.19, concerning 
hospital financial and utilization reporting and the reporting of charity care 
and community benefits data from nonprofit hospitals. Sections 13.13, 13.17, and 
13.18 are adopted with changes to the proposed text as published in the February 
6, 1998 issue of the Texas Register (23 TexReg 892). Sections 13.11, 13.15, and 
13.19 are adopted without change and therefore will not be republished.
The amendments implement Senate Bills 788 and 802, 75th Legislature, 1997, which 
amend the Health and Safety Code, Chapter 311, and correct inconsistencies with 
the enabling legislation. The sections as amended revise the purpose of the 
rules to accurately reflect statutory responsibilities, reformats the definition 
of "nonprofit hospital" for clarity, establishes additional nonprofit hospital 
reporting requirements for the annual report of the community benefits plan, 
revises the standards for the provision of charity care and community benefits, 
specifies and clarifies revised time lines for nonprofit hospital charity care 
and community benefits reporting, includes requirements for nonprofit hospitals 
to post charity care notices, expands the definition of "nonprofit hospital" for 
purposes of charity care and community benefits reporting, deletes a reporting 
exemption for nonprofit hospitals in a specified county, and provides revisions 
to existing rule language for clarification purposes. The amendments also revise 
the time frame for implementing compliance activities for hospitals failing to 
report financial and utilization data, incorporate language consistent with the 
statute for department implementation of noncompliance activities for hospitals 
failing to report, provide revisions to existing rule language for clarification 
purposes, and corrects an inconsistency with the enabling legislation regarding 
confidentiality of data. In making these amendments, the department is simply 
reflecting the language and express intent of Chapter 311 and of SB 788, sec.4, 
which addresses implementation of the legislative amendments to Chapter 311. 
No comments were received during the comment period on the proposed amendments. 
However, the department is making the following changes due to staff comments to 
clarify the intent and improve the accuracy of the sections. 
Change: Concerning sec.13.13 relating to the definition of "nonprofit hospital," 
the department added clarification regarding ownership determination to assist 
hospitals in determining their charity care and community benefits obligations 
under the law. The department clarifies that organization of a hospital is based 
on the entity holding the license issued by the department. This reading is 
supported by the definition of "hospital" in sec.311.031(10) and the 
requirements for licensing in each licensure law. 
Change: Concerning sec.13.13 relating to the definition of nonprofit hospitals 
exempt from reporting charity care and community benefits, the department added 
language to clarify that hospitals in counties with less than 50,000 population 
and with "special population", "partial geographic area" or "facility" specific 
Health Professional Shortage Area designations may not be exempt from charity 
care and community benefits reporting. 
Change: Concerning sec.13.17(b)(2)(A)-(C), relating to the three standards for 
meeting the nonprofit hospital charity care and community benefits requirement, 
the department has added the provision reflected in the Tax Code, sec.171.063 
(added by Acts 1997, 75th Legislature, Chapter 550, sec.3 (House Bill 3)) that 
allows contributions to the Healthy Kids Corporation to count toward a 
hospital's charity care obligation. This change is reflected in sec.13.17(b)(8).
Change: Concerning sec.13.17(b)(4), relating to using the form developed by the 
department, the department has added language to require nonprofit hospitals 
electing to report on a system basis to consolidate the individual hospital 
information into a single annual statement of community benefits standard form 
for the system. Language has also been added to require a separate set of 
worksheets to be completed and submitted for each hospital included in the 
system. 
Change: Concerning sec.13.17(c), relating to reporting by nonprofit hospitals, 
the department added language clarifying the data reporting requirements for 
nonprofit hospitals that are not exempt from the charity care and community 
benefits obligations. The Health and Safety Code, sec.311.046 requires nonprofit 
hospitals to file an annual report with "at least" the information described in 
that section. The department is required to submit an annual report pursuant to 
sec.311.0455(b) with certain information on each nonprofit hospital or hospital 
system. In order to compile the report, nonprofit hospitals must report the 
information listed in sec.13.17(c)(5). 
Change: A minor change was made in sec.13.18(a)(1)(B) to correct a verb tense. 
These sections are adopted under the Health and Safety Code, sec.104.042(a) 
which authorizes the board to adopt rules relating to the collection and 
dissemination of data from health care facilities necessary to facilitate health 
planning and resource development; sec.311.032(b) which mandates the adoption of 
rules on the collection and reporting of hospital financial and utilization 
data; and sec.12.001 which provides the board with the authority to adopt rules 
for the performance of every duty imposed by law on the board, the department 
and the Commissioner of Health. 

sec.13.13. Definitions. 
The following words and terms, when used in these sections, shall have the 
following meanings, unless the context clearly indicates otherwise. 
Nonprofit hospital-- 
(A) A hospital that is organized as a nonprofit corporation or a charitable 
trust under the laws of this state or any other state or country and is: 
(i) eligible for tax-exempt bond financing; or 
(ii) exempt from state franchise, sales, ad valorem, or other state or local 
taxes. For purposes of determining whether a hospital is "organized" as a 
nonprofit corporation or charitable trust, the department will look at the 
entity which holds the hospital license issued by the department; that is the 
entity which must be organized as a nonprofit corporation or charitable trust. 
(B) A "nonprofit hospital" shall not include a hospital that: 
(i) is exempt from state franchise, sales, ad valorem, or other state or local 
taxes; 
(ii) does not receive payment for providing health care services to any 
inpatients or outpatients from any source including, but not limited to, the 
patient or any person legally obligated to support the patient, third-party 
payers, Medicare, Medicaid, or any other federal, state, or local indigent care 
program; payment for providing health care services does not include charitable 
donations, legacies, bequests, or grants or payments for research; and 
(iii) does not discriminate on the basis of inability to pay, race, color, 
creed, religion, or gender in its provision of services. 
(C) A "nonprofit hospital" does not include a hospital that is located in a 
county with a population under 50,000 where the entire county or the population 
of the entire county has been designated as a health professional shortage area. 
A "nonprofit hospital" includes a hospital that is located in a county with a 
population under 50,000 population where only a subpopulation, partial 
geographic area or a facility is designated as a health professional shortage 
area. 

sec.13.17. Duties of Nonprofit Hospitals under Health and Safety Code, Chapter 
311. 
(a) Annual report of the community benefits plan. 
(1) The annual report of the community benefits plan may be filed with the 
department on a hospital or hospital system basis. 
(2) For fiscal years ending prior to January 1, 1998, a nonprofit hospital or 
hospital system shall file an annual report of the community benefits plan, as 
required by Health and Safety Code, sec.311.046 as it existed prior to 1997 
legislative amendments made by SB 788, with the department no later than 120 
days after the hospital's or hospital system's fiscal year ends. For fiscal 
years ending on or after January 1, 1998, a nonprofit hospital or hospital 
system shall file an annual report of the community benefits plan with the 
department no later than April 30 of the following year. 
(3) The nonprofit hospital's or hospital system's annual report of the community 
benefits plan must include, at a minimum: 
(A) the hospital's or hospital system's mission statement;
(B) a disclosure of the health care needs of the community that were considered 
in developing the community benefits plan; 
(C) a disclosure of the amount and types of community benefits, including 
charity care, actually provided. Charity care shall be reported as a separate 
item from other community benefits; 
(D) a statement of its total operating expenses computed in accordance with 
generally accepted accounting principles for hospitals from the most recent 
completed and audited prior fiscal year of the hospital; and
(E) a completed worksheet that computes the ratio of cost to charge for the 
fiscal year referred to in subparagraph (D) of this paragraph and that includes 
the same requirements as Worksheet 1-A adopted by the department in August 1994 
for the 1994 "Annual Statement of Community Benefits Standard".
(4) For fiscal years ending prior to January 1, 1998, the nonprofit hospital's 
or hospital system's annual report of the community benefits plan must include 
the items listed in paragraph (3)(A), (B) and (C) of this subsection. For fiscal 
years ending on or after January 1, 1998, the nonprofit hospital's or hospital 
system's annual report of the community benefits plan must include the items 
listed in paragraph (3)(A)-(E) of this subsection.
(5) For fiscal years ending on or after January 1, 1998, in addition to the 
annual report of the community benefits plan, a nonprofit hospital or hospital 
system shall file a completed worksheet as required by paragraph (3)(E) of this 
subsection no later than ten working days after the date the hospital or 
hospital system files its Medicare cost report. 
(b) Annual statement of community benefits standard. 
(1) The annual statement of community benefits standard may be filed with the 
department on a hospital or hospital system basis. 
(2) For fiscal years ending prior to January 1, 1998, a nonprofit hospital or 
hospital system shall file an annual statement with the department no later than 
120 days after the hospital's or hospital system's fiscal year ends. For fiscal 
years ending on or after January 1, 1998, a nonprofit hospital or hospital 
system is required to file an annual statement with the department no later than 
120 days after the hospital's or hospital system's fiscal year ends; however, 
the department will accept the annual statement as part of the acceptance of the 
annual report of the community benefits plan. The annual statement filed under 
this subsection shall be based on the most recently completed and audited prior 
fiscal year of the hospital and shall state which of the standards for providing 
community benefits has been satisfied. A nonprofit hospital or hospital system 
may elect to provide community benefits according to any of the following 
standards: 
(A) charity care and government-sponsored indigent health care are provided at a 
level which is reasonable in relation to the community needs, as determined 
through the community needs assessment, the available resources of the hospital 
or hospital system, and the tax-exempt benefits received by the hospital or 
hospital system, and other factors that may be unique to the hospital or 
hospital system, such as the hospital's or hospital system's volume of Medicare 
and Medicaid patients; 
(B) charity care and government-sponsored indigent health care are provided in 
an amount equal to at least 100% of the hospital's or hospital system's tax-
exempt benefits, excluding federal income tax; or 
(C) charity care and community benefits are provided in a combined amount equal 
to at least 5.0% of the hospital's or hospital system's net patient revenue, 
provided that charity care and government sponsored indigent health care are 
provided in an amount equal to at least 4.0% of net patient revenue. 
(3) For purposes of satisfying paragraph (2)(C) of this subsection, a hospital 
or hospital system may not change its existing fiscal year unless the hospital 
or hospital system changes its ownership or corporate structure as a result of a 
sale or merger. 
(4) A nonprofit hospital or hospital system shall use the annual statement of 
community benefits standard form and accompanying worksheets developed by the 
department for reporting under this section. Hospitals electing to report on a 
system basis shall consolidate the individual hospital information into a single 
annual statement of community benefits standard form for the system. A separate 
set of worksheets shall be completed for each individual hospital included in 
the system. 
(5) The department will accept written revisions of the annual statement of 
community benefits standard for 30 days after the filing date. 
(6) A nonprofit hospital that has been designated as a disproportionate share 
hospital under the state Medicaid program in the current fiscal year or in 
either of the previous two fiscal years shall be deemed in compliance with these 
standards. 
(7) A hospital that satisfies paragraphs (2)(A) or (6) of this subsection shall 
be excluded in determining a hospital system's compliance with the standards 
provided in paragraph (2)(B) and (C) of this subsection.
(8) Under the Tax Code, sec.171.063(a)(4), a requirement that a nonprofit 
hospital provide charity care and community benefits in order to be exempt from 
franchise tax may be satisfied by a donation of money to the Texas Healthy Kids 
Corporation established by the Health and Safety Code, Chapter 109, provided 
that: 
(A) the money is donated to be used for a purpose described by the Health and 
Safety Code, sec.109.033(c); and 
(B) not more than 10% of the charity care required under any provision of the 
Tax Code, sec.171.063(a), may be satisfied by the donation.
(c) Reporting.
(1) The department shall notify nonprofit hospitals in writing that the annual 
report of a community benefits plan and the statement of community benefits 
standard must be filed in accordance with these rules. 
(2)-(3) (No change.) 
(4) All hospitals or hospital systems shall report any change of ownership which 
may effect the nonprofit status of the hospital or hospital system to the Bureau 
of State Health Data and Policy Analysis at the department. 
(5) Each nonprofit hospital or hospital system shall report the following 
information to the department: 
(A) the hospital's mission statement; 
(B) a disclosure of the health care needs of the community that were considered 
in developing the hospital's community benefits plan pursuant to sec.311.044(b) 
of Chapter 311; 
(C) a disclosure of the amount and types of community benefits, including 
charity care, actually provided. Charity care shall be reported as a separate 
item from other community benefits; 
(D) a statement of its total operating expenses computed in accordance with 
generally accepted accounting principles for hospitals from the most recent 
completed and audited prior fiscal year of the hospital; 
(E) a completed worksheet that computes the ration of cost to charge for the 
fiscal year referred to in subparagraph (D) of this paragraph and that included 
the same requirements as Worksheet 1-A adopted by the department in August 1994 
for the 1994 "Annual Statement of Community Benefits Standards";
(F) the amount of charity care provided; 
(G) the amount of government-sponsored indigent health care provided; 
(H) the amount of community benefits provided; 
(I) the amount of net patient revenue and the amount constituting four percent 
of net patient revenue; 
(J) the dollar amount of the hospital's or hospital system's charity care and 
community benefits requirements met; 
(K) the amount of tax-exempt benefits provided, if the hospital is required to 
report tax-exempt benefits under subsection (b)(2)(A) or (B) of this section; 
and 
(L) the amount of charity care expenses reported in the hospital's or hospital 
system's audited financial statement. 
(d) (No change.) 
(e) Charity care notice. Each hospital shall provide, to each person who seeks 
any health care service at the hospital, notice, in appropriate languages, if 
possible, about the charity care program and how to apply for charity care. Such 
notice shall also be conspicuously posted in the general waiting area, the 
waiting area for emergency services, in the business office, and in such other 
locations as the hospital deems likely to give notice of the charity care 
program. 
(f) Exemptions. A nonprofit hospital is exempt from the reporting requirement in 
subsection (c) of this section if the hospital is located in a county with a 
population under 50,000 and in which the entire county or the population of the 
entire county has been designated as a "health professional shortage area" 
during the current or any previous fiscal year and has continued to maintain 
that designation. 
(g) For purposes of this section only, a nonprofit hospital shall include a 
nonprofit hospital as defined in sec.13.13 of this title (relating to 
Definitions) and: 
(1) a Medicaid disproportionate share hospital; or 
(2) a public hospital that is owned or operated by a political subdivision of 
municipal corporation of the state, including a hospital district or authority. 

sec.13.18. Noncompliance with Reporting Requirements.
(a) Data reporting. 
(1) If a hospital does not submit a completed survey form to the Texas 
Department of Health (department) within the 60-day reporting period established 
in sec.13.15 of this title (relating to Survey Forms), the department may 
institute the following procedures. 
(A) The department will notify the entity in writing by certified mail, return 
receipt requested, that the entity is in noncompliance with department reporting 
requirements and may be in violation of the Health and Safety Code, Chapter 104. 
The written notification will also state that the commissioner of health may 
request that the attorney general institute and conduct a suit in the name of 
the state to recover civil penalties if the hospital fails to submit the 
requested data to the department within 30 days of the date the entity received 
the notification letter. 
(B) If the department does not receive the requested data from the non-
responding hospital within the specified time frame, the commissioner of health 
may notify the attorney general in writing of the entity's noncompliance. The 
department will send a copy of the written notification to the hospital.
(2) A hospital that does not timely submit requested data to the department 
according to the requirements and procedures established in these sections is 
subject to a civil penalty of not more than $500 for each day of noncompliance, 
under the provisions of Health and Safety Code, Chapter 104. 
(b) Community benefits plans. 
(1) (No change.) 
(2) If a nonprofit hospital or hospital system does not submit a report of the 
community benefits plan to the department within the reporting period 
established in sec.13.17 of this title (relating to Duties of Nonprofit 
Hospitals under Health and Safety Code, Chapter 311), the department may 
institute the following procedures. 
(A) The department will notify the entity in writing by certified mail, return 
receipt requested, that the entity is in noncompliance with department reporting 
requirements and may be in violation of the Health and Safety Code, Chapter 311. 
The written notification will also state that the commissioner of health may 
request that the attorney general institute and conduct a suit in the name of 
the state to recover civil penalties if the hospital or hospital system fails to 
submit the report to the department within ten days after receipt of the written 
notification letter. 
(B) If the department does not receive the report of the community benefits plan 
from the non-responding hospital or hospital system within the specified time 
frame, the commissioner of health may notify the attorney general in writing of 
the entity's noncompliance. The department will send a copy of the written 
notification to the hospital or hospital system. 
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805526
Susan K. Steeg
General Counsel
Texas Department of Health 
Effective date: May 10, 1998
Proposal publication date: February 6, 1998
For further information, please call: (512) 458-7236

CHAPTER 39. Primary Health Care Services Program
SUBCHAPTER C. Medically Underserved Community-State Matching Incentive Program
25 TAC sec.sec.39.61-39.75
The Texas Department of Health (department), by majority vote of the Texas Board 
of Health (board) on April 17, 1998, enters this order finally adopting the 
repeal of sec.sec.39.61-39.75, concerning the Medically Underserved Community-
State Matching Incentive Program (MIP), without changes to the proposed text as 
published in the February 6, 1998 issue of the Texas Register (23 Tex Reg 896). 
Specifically, the sections cover purpose and scope; define terms used in the 
rules; define eligibility criteria for contributing communities, participating 
physicians, and state designation as a medically underserved area; describe the 
procedures for applying for funds, prioritization of need among applicant 
communities and funding allocation; and provide specifications for related 
contracts, including requirements for community contribution of funds. 
By Senate Bill 913, the 75th Legislature directed the board to transfer its 
obligations, property, and rights as administrator of the MIP under Health and 
Safety Code, Chapter 46, to the Center for Rural Health Initiatives (Center) not 
later than September 1, 1998. The Center's executive board will adopt new rules 
to administer the MIP in compliance with Health and Safety Code, Chapter 106, as 
amended by Senate Bill 913. Repeal of sec.sec.39.61-39.75 is necessary to 
transfer the program. 
No comments were received concerning the proposed repeal. 
The repeal is required by Senate Bill 913, 75th Legislature, 1997, and adopted 
under Health and Safety Code sec.12.001(b), which provides the board with 
authority to adopt rules for the performance of every duty imposed by law upon 
the board, the department, and the commissioner of health.
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805520
Susan K. Steeg
General Counsel
Texas Department of Health 
Effective date: May 10, 1998
Proposal publication date: February 6, 1998
For further information, please call: (512) 458-7236

CHAPTER 169. Zoonosis Control 
SUBCHAPTER E. Dog and Cat Sterilization
25 TAC sec.169.101
The Texas Department of Health (department), by majority vote of the Texas Board 
of Health (board) on April 17, 1998, enters this order finally adopting new 
sec.169.101, concerning the requirement to establish an Animal Friendly Advisory 
Committee. Section 169.101 is adopted without changes to the proposed text as 
published in the December 5, 1997, issue of the Texas Register (22 TexReg 
11954), and therefore the section will not be republished. 
This new section is required by Chapter 657, 75th Legislature, 1997, which 
amended the Health and Safety Code, Chapter 828, mandating the department to 
create the Animal Friendly Advisory Committee and appoint its members. The 
committee will review and make recommendations to the department on the 
disbursal of money credited to the animal friendly account. Specifically, the 
section specifies the purpose, composition, tasks, and requirements of the 
advisory committee. Funds in the Animal Friendly account will come from the sale 
of Animal Friendly license plates and will be used to provide low-cost surgical 
sterilization of dogs and cats, thereby decreasing the public health threat due 
to stray animals. 
No comments were received during the comment period on the new section.
The new section is adopted under the Health and Safety Code sec.828.14, which 
provides for the appointment of an Animal Friendly Advisory Committee; and 
sec.12.001, which provides the board with the authority to adopt rules for the 
performance of every duty imposed by law on the board, the department, and the 
commissioner of health. 
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805521
Susan K. Steeg
General Counsel
Texas Department of Health 
Effective date: May 10, 1998
Proposal publication date: December 5, 1997
For further information, please call: (512) 458-7236

CHAPTER 241. Shellfish Sanitation 
SUBCHAPTER B. Molluscan Shellfish
The Texas Department of Health (department), by majority vote of the Texas Board 
of Health (board) on April 17, 1998, enters this order finally adopting the 
repeal of sec.sec.241.50 - 241.100 and new sec.sec.241.50 - 241.67, concerning 
Texas molluscan shellfish. New sections 241.50, 241.54, 241.56, and 241.64 are 
adopted with changes to the proposed text as published in the February 6, 1998, 
issue of the Texas Register (23 TexReg 898). The repeal and new sections 241.51-
241.53, 241.55, 241.57-241.63, and 241.65-241.67 are adopted without changes and 
therefore the sections will not be republished.
The new sections cover definitions; grounds and arrangements; sanitary controls; 
water supplies; storage areas; processing of molluscan shellfish; maintenance 
and cleaning; records and supervision guidelines which are provided by the new 
federal Shellfish Sanitation Model Ordinance; and they also include requirements 
established by the U.S. Food and Drug Administration's Fish and Fishery Products 
Hazard Analysis and Critical Control Point (HACCP) regulations (Code of Federal 
Regulations, Title 21, Part 123). This action is necessary because of new 
federally mandated HACCP requirements. These rules are essential for the proper 
regulation of the molluscan shellfish industry. 
No public comments were received by the department on the proposal of these 
rules during the comment period. 
The department is making the following minor changes due to staff comments to 
clarify the intent and improve the accuracy of the sections. 
Change: Concerning adopted sec.241.50 Definitions, the word "chapter" was 
changed to "subchapter". 
Change: Concerning adopted sec.241.50 Definitions, in the definition of 
"authorized agent" the word "department" was changed to the "Texas Department of 
Health" and "director (commissioner of health)" was changed to "commissioner" 
and the word "chapter" was changed to "section". 
Change: Concerning adopted sec.241.50 Definitions, in the definition of 
"certificate" the letters "SSD" were added after "Seafood Safety Division".
Change: Concerning adopted sec.241.50 Definitions, in the definition of 
"Coliform group" the "+" sign was deleted and changed to read "plus or minus". 
Change: Concerning adopted sec.241.50 Definitions, in the definition of 
"Commissioner" the words "and the executive head of the department" were added. 
Change: Concerning adopted sec.241.50 Definitions, in the definition of "HACCP 
Plan" the references to the Interstate Shellfish Sanitation Conference and as 
amended were deleted for lack of relevance. 
Change: Concerning adopted sec.241.50 Definitions, in the definition of "TNRCC" 
the zip code for the mailing address was incorrect. 
Change: Concerning adopted sec.241.54(c)(3) Land Based Aquaculture, the 
reference to "sec.241.5 (3)(A) and (B)" was corrected to show 
"sec.241.54(b)(3)(A) and (B)". 
Change: Concerning adopted sec.241.56(c)(4) Molluscan Shell Stock Harvesting and 
Handling, the word "the" was added for clarification. 

25 TAC sec.sec.241.50-241.100
The repeal is adopted under Health and Safety Code, sec.sec.436.112 and 12.001, 
which provides the Board of Health (board) with the authority to adopt rules for 
the performance of every duty imposed by law on the board, the department, and 
the commissioner of health. 
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805524
Susan K. Steeg
General Counsel
Texas Department of Health 
Effective date: May 10, 1998
Proposal publication date: February 6, 1998
For further information, please call: (512) 458-7236

25 TAC sec.sec.241.50-241.67
The new sections are adopted under Health and Safety Code, sec.sec.436.112 and 
12.001, which provides the Board of Health (board) with the authority to adopt 
rules for the performance of every duty imposed by law on the board, the 
department, and the commissioner of health. 

sec.241.50. Definitions. 
The following words and terms, when used in this subchapter of this title 
(relating to Molluscan Shellfish), shall have the following meaning unless the 
context clearly indicates otherwise. 
(1) Air gap - The unobstructed vertical distance through the free atmosphere 
between the lowest opening from any pipe or faucet supplying water to a tank, 
plumbing fixture or other device and the flood level rim of that receptacle. 
(2) Approved area - A classification used to identify a harvest area where 
harvest for direct marketing is allowed. 
(3) Approved source - A source of molluscan shellfish acceptable to the director 
(commissioner of health). 
(4) Aquaculture - The cultivation of seed in natural or artificial growing or 
harvest areas, or the cultivation of molluscan shell stock other than seed in 
harvest areas. 
(5) Assure - To make certain. 
(6) Authorized agent - An employee of the Texas Department of Health who is 
designated by the Commissioner to enforce provisions of these sections. 
(7) Backflow - The flow of water or other liquids, mixtures or substances into 
the distribution pipes of a potable water supply from any source or sources 
other than the intended source. 
(8) Back siphonage - The flowing back of used, contaminated or polluted water 
from a plumbing fixture, vessel or other source into potable water supply pipes 
because of negative pressure in the water supply pipes.
(9) Blower - A receptacle for washing shucked molluscan shellfish which uses 
forced air as a means of agitation. 
(10) Certificate (molluscan shellfish certificate of compliance) - A numbered 
document issued by the Seafood Safety Division (SSD) which authorizes a dealer 
to process molluscan shellfish for sale. 
(11) Certification or certify - The issuance of a numbered certificate to a 
person for a particular activity or group of activities that indicates: 
(A) permission from the department to conduct the activity; and 
(B) initial compliance with the requirements of these rules in this chapter of 
this title (relating to Molluscan Shellfish). 
(12) Certification number - The unique identification number issued by the 
department to each dealer for each location. Each certification number shall 
consist of a one to five digit Arabic number preceded by the two letter State 
abbreviation and followed by a two letter abbreviation for the type of activity 
or activities the dealer is qualified to perform in accordance with the 
following terms: 
(A) Shellstock shipper (SS); 
(B) Shucker/packer (SP); 
(C) Repacker (RP); 
(D) Depuration processor (DP). 
(13) Certified location - A plant or place of business which has been inspected 
by the Seafood Safety Division and for which a molluscan shellfish certificate 
of compliance has been issued. 
(14) Coliform group - All of the aerobic and facultative anaerobic, gram 
negative, nonspore forming, rod shaped bacilli which ferment lactose broth with 
gas formation within 48 hours at 95 degrees Fahrenheit (35 degrees plus or minus 
0.5 degrees Centigrade). 
(15) Commingle or commingling - The act of combining different lots of molluscan 
shell stock or shucked molluscan shellfish. 
(16) Commissioner - The commissioner of health for the State of Texas and the 
executive head of the department. 
(17) Compliance schedule - A written schedule that provides a correction time 
period to eliminate key and other deficiencies. 
(18) Conditionally approved area - A classification used to identify a harvest 
area which meets the criteria for the approved classification except under 
certain conditions described in a management plan established by the SSD. 
(19) Conditionally restricted area - A classification used to identify a harvest 
area which meets the criteria for the restricted classification except under 
certain conditions described in a management plan established by the SSD.
(20) Container - The physical material in contact with or immediately 
surrounding molluscan shellfish that confines it into a single unit. 
(21) Corrosion resistant materials - Materials that maintain their original 
surface characteristics under normal exposure to the foods being contacted, 
normal use of cleaning compounds and bactericidal solutions, and other 
conditions of use. 
(22) Critical Control Point (CCP) - A point, step or procedure in a food process 
at which control can be applied, and a food safety hazard can as a result be 
prevented, eliminated or reduced to acceptable levels.
(23) Critical deficiency - A condition or practice which:
(A) results in the production of a product that is unwholesome; or 
(B) presents a threat to the health or safety of the consumer.
(24) Critical limit - The maximum or minimum value to which a physical, 
biological, or chemical parameter must be controlled at a critical control point 
to prevent, eliminate or reduce to an acceptable level the occurrence of the 
identified food safety hazard. 
(25) Cross connection - An unprotected actual or potential connection between a 
potable water system and any source or system containing unapproved water or a 
substance that is not or cannot be approved as safe and potable. Examples 
include, bypass arrangements, jumper connection, removable sections, swivel or 
change over devices, or other devices through which backflow could occur. 
(26) Cull - To remove dead or unsafe molluscan shell stock from a lot of 
molluscan shell stock. 
(27) Dealer - A person to whom certification is issued for the activities of 
molluscan shell stock shipper, shucker-packer, repacker, or depuration 
processor. 
(28) Department - The Texas Department of Health, 1100 West 49th Street, Austin, 
Texas, 78756, or its successor state agency, having the responsibility for the 
enforcement of laws concerning the safety of the food supply including molluscan 
shellfish growing area classification and certification of molluscan shellfish 
dealers. 
(29) Depletion - The removal, under the direct control of the Texas Parks and 
Wildlife Department, of all existing commercial quantities of market-size 
molluscan shellfish from a harvest area classified as prohibited.
(30) Depuration or depurate - The process of reducing the level of bacteria and 
viruses that may be present in molluscan shellfish by using a controlled aquatic 
environment as the treatment process. 
(31) Depuration plant - A place where depuration of molluscan shellfish occurs. 
(32) Depuration Processor (DP) - A person who harvests or receives molluscan 
shell stock from harvest areas in the approved or conditionally approved, 
restricted, or conditionally restricted classification and submits such 
molluscan shell stock to an approved depuration process. 
(33) Direct marketing - The sale for human consumption of molluscan shellfish 
which: 
(A) does not require depuration or relaying prior to sale; or 
(B) has been subjected to depuration or relaying activities.
(34) Director - The executive head (commissioner of health) of the Texas 
Department of Health. 
(35) Dry storage - The storage of molluscan shell stock out of water. 
(36) Durable material - Material with the ability to exist for several years 
without significant deterioration and able to withstand normal daily use 
associated with molluscan shellfish operations. 
(37) Easily cleanable - A surface which is: 
(A) readily accessible; and 
(B) is made of such materials, has a finish, and is so fabricated that residues 
may be effectively removed by normal cleaning methods. 
(38) Facility - A structure. 
(39) FDA - The United States Food and Drug Administration or its successor 
agency, the federal agency in which regulation of foods, including the 
Cooperative Shellfish Program, is vested. 
(40) Food contact surface - An equipment surface or utensil which normally comes 
into direct or indirect contact with shucked molluscan shellfish. 
(41) Food safety hazard - Any biological, chemical, or physical property that 
may cause a food to be unsafe for human consumption.
(42) Gatherer - Person who takes molluscan shellfish by any means from a growing 
area designated by the commissioner for delivery to a depuration plant. 
(43) GLO - The Texas General Land Office, 1700 North Congress, Austin, Texas, 
78701, or its successor agency, the state agency having the responsibility for 
the enforcement of laws concerning all state lands, including leasing of wetland 
bottom for private oyster leases. 
(44) Growing area - Any site which supports or could support the propagation of 
molluscan shell stock by natural or artificial means. 
(45) HACCP - Hazard Analysis Critical Control Point, a systematic, science-based 
approach used in food production as a means to assure food safety. The concept 
is built upon the seven principles identified by the National Advisory Committee 
on Microbiological Criteria for Foods (1992)
(46) HACCP Plan - A written document that delineates the formal procedures that 
a dealer follows to implement the HACCP requirements set forth in Code of 
Federal Regulations, Title 21, sec.123.6. 
(47) Harvest - The act of removing molluscan shell stock from growing or harvest 
areas and its placement on or in a manmade conveyance or other means of 
transport. 
(48) Harvest area - An area that contains commercial quantities of molluscan 
shell stock and may include aquaculture sites and facilities. 
(49) Harvester - A person who takes molluscan shell stock by any means from a 
harvest area. 
(50) Heat shock - The process of subjecting molluscan shell stock to any form of 
heat treatment prior to shucking, including steam, hot water or dry heat, to 
facilitate removal of the meat from the shell without substantially altering the 
physical or organoleptic characteristics of the molluscan shellfish. 
(51) Includes or including - Includes or including by way of illustration and 
not by way of limitation. 
(52) ISSC - The Interstate Shellfish Sanitation Conference. The ISSC consists of 
agencies from molluscan shellfish producing and receiving states, FDA, the 
molluscan shellfish industry, and the National Marine Fisheries Service of the 
U.S. Department of Commerce. 
(53) Key deficiency - A condition or practice which may result in adulterated, 
decomposed, misbranded or unwholesome product. 
(54) Label - Any written, printed or graphic matter affixed to or appearing upon 
any package containing molluscan shellfish. 
(55) License - The document issued by the Texas Parks and Wildlife Department, 
under the Texas Parks and Wildlife Code, Chapter 47 or Chapter 76, which 
authorizes a person to harvest or transport molluscan shell stock for commercial 
sale. 
(56) Lot of molluscan shell stock - A single type of bulk molluscan shell stock 
or containers of molluscan shell stock of no more than one day's harvest from a 
single defined harvest area gathered by one or more harvesters. 
(57) Lot of molluscan shell stock for depuration - Molluscan shell stock 
harvested from a particular area during a single day's harvest and delivered to 
one depuration plant. 
(58) Lot of shucked molluscan shellfish - A collection of containers of no more 
than one day's shucked molluscan shellfish product produced under conditions as 
nearly uniform as possible, and designated by a common container code or 
marking. 
(59) Marina - Any water area with a structure (docks, basin, floating docks, 
etc.) which is: 
(A) used for docking or otherwise mooring vessels; and 
(B) constructed to provide temporary or permanent docking space for more than 
ten boats. 
(60) Marine biotoxin - Any poisonous compound produced by marine microorganisms 
and accumulated by molluscan shell stock. Examples include Alexandrium spp. 
(Proto gonyaulax species), and Gymnodinium breve. 
(61) Market shellfish - Molluscan shellfish which are, may be, or have been 
harvested and/or prepared for sale for human consumption as a fresh or frozen 
product. 
(62) May - Discretionary and is not mandatory or required.
(63) Molluscan shellfish - All species of: 
(A) oysters, clams or mussels, whether: 
(i) shucked or in the shell; 
(ii) fresh or frozen; and 
(iii) whole or in part. 
(B) scallops in any form, except when the final product form is the adductor 
muscle only. 
(64) Monoculture - The culture of a single molluscan shellfish species. 
(65) MPN - Most probable number. 
(66) Open area - A molluscan shellfish growing area where the harvesting for 
sale, harvesting for transplant, or gathering for depuration of molluscan 
shellfish is allowed. An open area status may be placed on any one of the 
classified area designations except for a prohibited area. 
(67) Open water aquaculture - The cultivation of molluscan shellfish in natural 
molluscan shellfish harvest areas. 
(68) Other deficiency - A condition or practice that is not defined as critical 
or key, but is of a public health significance and, if left uncorrected, could 
result in a more serious violation. 
(69) Pack (packing) - All activities involved in placing molluscan shellfish in 
containers. 
(70) Person - Any individual, receiver, trustee, guardian, personal 
representative, fiduciary, or representative of any kind, government or 
governmental subdivision or agency, partnership, association, corporation or 
other legal entity. 
(71) Poisonous or deleterious substance - A toxic substance occurring naturally 
or added to the environment for which a regulatory tolerance limit or action 
level has been established in molluscan shellfish to protect public health. 
(72) Polyculture - The cultivation of: 
(A) two or more species of molluscan shellfish; or 
(B) molluscan shellfish with other species in a common environment.
(73) Potable water - A water supply which is suitable for human consumption. 
(74) Principal display panel - The part of a label that is most likely to be 
displayed, presented, shown or examined under customary conditions of retail 
sale. 
(75) Process batch - A quantity of molluscan shell stock used to fill each 
separate tank or a series of tanks supplied by a single process water system for 
a specified depuration cycle in a depuration activity.
(76) Process water - The water used in the scheduled depuration process. 
(77) Prohibited area - A classification used to identify a harvest area where 
the harvest of molluscan shell stock for any purpose, except depletion or 
gathering of seed for aquaculture, is not permitted. 
(78) Repacker (RP) - Any person, other than the original certified shucker-
packer, who repackages shucked molluscan shellfish into other containers. 
(79) Repacking molluscan shell stock - The practice of removing molluscan shell 
stock from containers and placing it into other containers.
(80) Restricted area - A classification used to identify a harvest area where 
harvesting shall be by special license and the molluscan shell stock, following 
harvest, is subjected to a suitable and effective treatment process through 
transplanting or gathering for depuration. 
(81) Safe materials - Articles manufactured from or composed of materials that 
may not reasonably be expected to, directly or indirectly, become a component of 
or otherwise adversely affect the characteristics of any food. 
(82) Sanitation control record - Records that document the monitoring of 
sanitation practices and conditions. 
(83) Sanitize - To adequately treat food contact surfaces by a process that is 
effective in: 
(A) destroying vegetative cells of microorganisms of public health significance; 
(B) substantially reducing the numbers of other undesirable microorganisms; and 
(C) not adversely affecting the product or its safety for the consumer. 
(84) Seed - Molluscan shell stock which is less than market size. 
(85) Sewage - Refuse liquids or waste matter, including hand sink drainage. 
(86) Sewer - An artificial, usually subterranean, conduit to carry off sewage 
and/or surface water. 
(87) Sewerage - The removal and disposal of sewage and surface water by sewers. 
(88) Shell stock - Live molluscan shellfish in the shell.
(89) Shell stock packing - The process of placing molluscan shell stock into 
containers for introduction into commerce. 
(90) Shellstock Shipper (SS) - A dealer who grows, harvests, buys, or repacks 
and sells molluscan shell stock. They are not authorized to shuck molluscan 
shellfish nor to repack shucked molluscan shellfish. A shellstock shipper may 
also ship shucked molluscan shellfish. 
(91) Shucked shellfish - Molluscan shellfish, whole or in part, from which one 
or both shells have been removed. 
(92) Shucker/Packer (SP) - A person who shucks and packs molluscan shellfish. A 
shucker-packer may act as a shellstock shipper or may repack molluscan shellfish 
originating from other certified dealers. 
(93) SSD - The Seafood Safety Division of the Texas Department of Health to 
which responsibility to classify molluscan shellfish growing areas and to 
regulate harvesting, processing, and/or shipping of molluscan shellfish is 
delegated. 
(94) Take - Catch, hook, net, snare, trap, kill, or capture by any means, 
including the attempt to take. 
(95) TDA - The Texas Department of Agriculture, 1700 North Congress, Austin, 
Texas, 78701, or its successor state agency having responsibility for 
enforcement of laws concerning licensing of aquaculture.
(96) TNRCC - The Texas Natural Resource Conservation Commission, 12100 Park 35 
Circle, Austin, Texas, 78753, or its successor state agency having the 
responsibility for the enforcement of laws concerning water supplies and 
discharges of water or wastewater in Texas. 
(97) TPWD - The Texas Parks and Wildlife Department, 4200 Smith School Road, 
Austin, Texas, 78744, or its successor state agency having the responsibility 
for the enforcement of laws concerning harvesting and depletion of molluscan 
shellfish resources. 
(98) Transaction record - The form or forms used to document each purchase or 
sale of molluscan shellfish at the wholesale level, and includes molluscan 
shellfish harvest and sales records, ledgers, purchase records, invoices and 
bills of lading. 
(99) Transplant (transplanting) - To transfer molluscan shell stock from a 
harvest area classified as restricted or conditionally restricted or from a 
conditionally approved area in the closed status to a harvest area classified as 
approved or conditionally approved for the purpose of reducing pathogens as 
measured by the coliform indicator group or poisonous or deleterious substances 
that may be present in the molluscan shell stock by using the ambient 
environment as the treatment process. 
(100) Water closet - A toilet bowl and its accessories surrounded by walls or 
partitions. 
(101) Wet storage - The temporary storage, by a dealer, of molluscan shell stock 
from harvest areas in the approved classification or in the open status of the 
conditionally approved classification in containers or floats in natural bodies 
of water or in tanks containing natural or synthetic seawater. 

sec.241.54. Land Based Aquaculture. 
(a) Operational plan. Each land based aquaculture facility shall have a written 
operational plan. The plan shall be approved by the department prior to its 
implementation and shall include: 
(1) a description of the design and activities of the culture facility; 
(2) the specific site and boundaries in which molluscan shellfish culture 
activities will be conducted; 
(3) the types and locations of any structures, including rafts, pens, cages, 
nets, tanks, ponds, or floats which will be placed in the waters; 
(4) the species of molluscan shellfish to be cultured and harvested; 
(5) if appropriate, the source and species of other organisms to be cultured in 
any polyculture systems; 
(6) procedures to assure that no poisonous or deleterious substances are 
introduced into the activities; 
(7) a program of sanitation, maintenance, and supervision to prevent 
contamination of the final molluscan shellfish products; 
(8) a description of the water source, including the details of any water 
treatment process or method, if necessary; 
(9) a program to maintain water quality, which includes collection of microbial 
water samples and their method of analysis and routine temperature and salinity 
monitoring. The bacterial indicator monitored shall be the same as used for 
monitoring harvest areas; 
(10) collection of information on the microbial and chemical quality of 
molluscan shellfish harvested from the aquaculture site; 
(11) collection of data concerning the quality of food production (algae or 
other) used in the artificial harvest system; 
(12) maintenance of the required records; and 
(13) how molluscan shell stock will be harvested, processed if applicable, and 
sold. 
(b) Water systems. 
(1) If the aquaculture system is of continuous flow through design, water from a 
harvest area classified as approved, or in the open status of the conditionally 
approved classification at all times molluscan shellfish are held, may be used 
without treatment. 
(2) Water used in land based aquaculture incorporating a closed or recirculating 
system shall: 
(A) not contaminate molluscan shellfish with residues that would render the 
product adulterated; 
(B) come from a source meeting the restricted classification criteria at a 
minimum; 
(C) be maintained, at a minimum, at the bacteriological quality of the 
restricted classification; and 
(D) be measured at least five times per year. 
(3) If the water in the closed or recirculating system meets the criteria for 
the conditionally approved classification, the operational plan, prior to 
molluscan shell stock harvest, shall require, at a minimum: 
(A) collection of three water samples from the tank at least three days apart 
over a 14 day period; and 
(B) a fecal coliform density of less than 14 MPN per 100 ml in each water sample 
collected from the holding tank. 
(c) Molluscan shell stock quality. 
(1) Molluscan shell stock cultured in any system meeting the criteria for the 
approved classification throughout the culture period may be used in direct 
marketing. 
(2) If the water in a closed or recirculating system is classified as 
conditionally approved and in the open status, and if the water quality meets a 
fecal coliform level of less than 14 MPN per 100 ml in each sample collected in 
the 14 days prior to harvest, the molluscan shell stock may be used in direct 
marketing. 
(3) Molluscan shell stock cultured in a closed or recirculating system which 
does not meet the requirements of subsection (b)(3)(A) and (B) of this section 
shall be relayed or depurated prior to direct marketing. 

sec.241.56. Molluscan Shell Stock Harvesting and Handling. 
(a) Harvesters. Any harvester who engages in molluscan shell stock packing as 
defined in this chapter of this title shall: 
(1) be a dealer; or 
(2) pack molluscan shell stock for a dealer. 
(b) Vessels. 
(1) The dealer shall not accept molluscan shell stock unless all vessels used to 
harvest and transport molluscan shell stock are properly constructed, operated 
and maintained to prevent contamination, deterioration and decomposition of the 
molluscan shell stock. 
(A) Decks and storage bins shall be constructed and located to prevent bilge 
water or polluted overboard water from coming into contact with the molluscan 
shell stock. 
(B) Bilge pump discharges shall be located so that the discharge shall not come 
into contact with the molluscan shell stock. 
(C) Bags or other containers used for storing molluscan shell stock shall be 
clean and fabricated from safe materials. 
(D) Boat decks and storage bins used in the harvest or transport of molluscan 
shell stock for direct marketing shall be: 
(i) kept clean with potable water or water from a harvest area in the approved 
classification or in the open status of the conditionally approved 
classification; and 
(ii) constructed so that water does not stand on the deck or in the storage bin. 
(E) Coverings shall be provided on harvest boats to protect molluscan shell 
stock from exposure to adverse conditions. 
(2) Cats, dogs, and other animals shall not be allowed on vessels. 
(c) Disposal of human sewage from vessels. 
(1) Human sewage shall not be discharged overboard from a vessel used in the 
harvesting of molluscan shell stock or from vessels which buy molluscan shell 
stock, but only into an appropriate sewage disposal system.
(2) An approved marine sanitation device (MSD), portable toilet or other sewage 
disposal receptacle shall be provided on the vessel to contain human sewage. 
(3) Portable toilets shall: 
(A) be used only for the purpose intended; 
(B) be secured while on board and located to prevent contamination of molluscan 
shell stock by spillage or leakage; 
(C) be emptied only into an appropriate sewage disposal system;
(D) be cleaned and sanitized before being returned to the boat; and 
(E) be cleaned only in equipment which is not used for washing or processing 
food. 
(4) Use of other receptacles for sewage disposal may be approved by the 
department if the receptacles are: 
(A) constructed of impervious and cleanable materials; and
(B) meet the requirements in subsection (c)(3) of this section.
(d) Molluscan shell stock washing. 
(1) Molluscan shell stock shall be washed reasonably free of bottom sediments as 
soon after harvesting as practicable. 
(2) The harvester shall be primarily responsible for washing the molluscan shell 
stock. 
(3) If molluscan shell stock washing is not feasible at the time of harvest, the 
dealer shall assume this responsibility. 
(4) Water used for molluscan shell stock washing shall be obtained from: 
(A) a potable water source; or 
(B) a harvest area in the: 
(i) approved classification; or 
(ii) in the open status of the conditionally approved classification.
(5) If the harvester or dealer elects to use tanks or a water system to wash 
molluscan shell stock, the molluscan shell stock washing activity shall be 
constructed, operated, and maintained in compliance with an approved HACCP plan 
in accordance with sec.241.60 of this title (relating to General HACCP 
Requirements) and sec.241.61 of this title (relating to General Sanitation 
Requirements). 
(e) Molluscan shell stock identification. 
(1) Each harvester shall affix a tag to each bag or container of molluscan shell 
stock which shall be in place while the molluscan shell stock is being 
transported to a dealer. 
(2) If the molluscan shell stock is harvested at more than one location, each 
container shall be tagged at its harvest area. 
(3) When the harvester is also the dealer, the harvester has the option to tag 
the molluscan shellfish with a harvester's tag or a dealer's tag meeting the 
requirements outlined in subsection (e) of this section s. 
(4) The harvester's tags shall: 
(A) be durable, waterproof and approved by the department prior to use; and 
(B) be at least 2-5/8 by 5-1/4 inches (6.7 by 13.3 cm) in size. 
(5) The harvester's tag shall contain the following indelible, legible 
information in the order specified: 
(A) the commercial oyster boat captain's license number (issued by TPWD), the 
captain's name, and any one of the following: 
(i) the oyster boat license number; 
(ii) the boat state registration number; or 
(iii) the documented boat name; 
(B) the date of harvest; 
(C) the most precise identification of the harvest location as is practicable 
including the initials of the state of harvest, and any department designation 
of the harvest area by indexing, administrative or geographic designation; 
(D) when the molluscan shell stock has been in wet storage in a dealer's 
operation, the statement: "THIS PRODUCT IS A PRODUCT OF (NAME OF STATE) AND WAS 
WET STORED AT (FACILITY CERTIFICATION NUMBER) FROM (DATE) TO (DATE)"; 
(E) the type and quantity of molluscan shell stock; and 
(F) the following statement in bold capitalized type on each tag "THIS TAG IS 
REQUIRED TO BE ATTACHED UNTIL CONTAINER IS EMPTY OR IS RETAGGED AND THEREAFTER 
KEPT ON FILE FOR 90 DAYS." 
(6) Molluscan shell stock harvested during the period April 1 through October 31 
that will not be refrigerated within the Time-To-Refrigeration guidelines 
required in sec.241.58 of this title (relating to Molluscan Shell Stock 
Temperature Control) shall not be harvested before 6:00 a.m. and shall be placed 
under refrigeration as designated in sec.241.58 of this title by 8:00 p.m. each 
day and shall be identified, stored, and processed separately from molluscan 
shell stock that is refrigerated within these Time-To-Refrigeration guidelines. 
(7) Molluscan shell stock harvested and held exempt from the Time-To-
Refrigeration guidelines in paragraph (6) of this subsection shall:
(A) be tagged with a harvester tag meeting all other requirements that shall 
also be over stamped on both sides with the words "FOR SHUCKING BY A CERTIFIED 
DEALER" in ink that shall be neon green in color in letters at least one-half 
inch in height. This special harvester tag shall be placed on each container of 
molluscan shell stock at the conclusion of harvesting of this exempt molluscan 
shell stock and before harvesting of any other molluscan shell stock. This 
special harvester tag shall remain attached to each container until the 
molluscan shell stock is shucked; 
(B) not be commingled with any other molluscan shellfish and shall be stored 
separately on harvest boats and at any certified location; and 
(C) be shucked and placed in containers bearing the consumer information 
language adopted by the ISSC, or an equivalent approved in writing by the SSD 
prior to use, unless the invoice and bill of lading for shipment of this exempt 
molluscan shell stock to another dealer both contain the following statement: 
"FOR SHUCKING BY A CERTIFIED DEALER". All dealer tags attached to such molluscan 
shell stock shall be over stamped identical to the harvester tag. 
(8) If the molluscan shell stock is removed from the original bag or container, 
the tag on the new bag or container shall meet the requirements in subsection 
(e) of this section. 
(f) Harvester records. 
(1) Each harvester who harvests molluscan shell stock during the period April 1 
- October 31 shall maintain records for each date molluscan shell stock is 
harvested that show the time the first molluscan shell stock is harvested, the 
time harvesting ends, and the time molluscan shell stock is unloaded from the 
boat. 
(2) If molluscan shell stock is harvested and held exempt from the Time-To-
Refrigeration guidelines in subsection (e) of this section, the harvester 
records shall also include the time that harvesting of this exempt molluscan 
shell stock ends and the time that harvesting of other molluscan shell stock 
begins. 
(3) These records shall be provided to the dealer with the molluscan shell stock 
and shall be maintained as part of the dealer's records. 
(g) Any molluscan shellfish in possession of a person holding a valid license 
issued by TPWD under Texas Parks and Wildlife Code, Chapter 47 or Chapter 76, 
shall be considered to be harvested for human consumption and offered for sale 
for food in Texas. 
(h) Harvesters shall: 
(1) be responsible for control of their molluscan shell stock until acceptance 
by a dealer; 
(2) sell their molluscan shell stock only to a currently certified shellfish 
dealer; 
(3) be required to deliver their molluscan shell stock to a dealer within the 
day the molluscan shell stock is harvested. For this purpose, a day shall be 
considered to be a 24 hour period from 12:00 a.m. to 12:00 a.m. the next day. 
Delivery of the molluscan shell stock means packing the molluscan shell stock 
into an approved container, transfer of the molluscan shell stock from the boat 
to a certified location, and acceptance of the molluscan shell stock by the 
dealer; and 
(4) be required to transport molluscan shell stock on ice or at air temperatures 
of 45 degrees Fahrenheit or less if the time from unloading the boat until the 
product is accepted by a dealer and placed under refrigeration at a certified 
location will exceed two hours. 
(i) If the harvester transports molluscan shell stock other than by boat to a 
certified location, the harvest boat captain must accompany the molluscan shell 
stock until acceptance by the dealer. 
(j) It is illegal for harvesters to sell molluscan shell stock directly to the 
public. 

sec.241.64. Labeling of Molluscan Shellfish Post-Harvest Processed to Reduce 
Vibrio vulnificus.
A dealer may elect to use a process to reduce Vibrio vulnificus levels in 
molluscan shellfish. 
(1) The dealer shall: 
(A) have a HACCP plan acceptable to the department for the process which 
includes: 
(i) an end point criteria for the process as non-detectable (>3 MPN/gram) using 
the FDA approved EIA procedure of Tamplin, et al, as detailed in Chapter 9 of 
the FDA Bacteriological Analytical Manual, 7th edition, 1992; and 
(ii) a sampling program to demonstrate that the end point criteria is met. 
(B) package and label all molluscan shellfish in accordance with the 
requirements in this chapter of this title (relating to Molluscan Shellfish) 
including labeling all molluscan shellfish which has been subjected to the 
process but which is not frozen in accordance with the molluscan shell stock 
labeling requirements in sec.241.62 of this title (relating to Dealer Molluscan 
Shell Stock Identification); and 
(C) keep records in accordance with the requirements in this chapter of this 
title (relating to Molluscan Shellfish). 
(2) A dealer who meets the requirements of this section may label product which 
has been subjected to the reduction process as "Processed to reduce Vibrio 
vulnificus to non-detectable levels". 
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805525
Susan K. Steeg
General Counsel
Texas Department of Health 
Effective date: May 10, 1998
Proposal publication date: February 6, 1998
For further information, please call: (512) 458-7236

CHAPTER 295. Occupational Health
SUBCHAPTER I. Texas Environmental Lead Reduction
25 TAC sec.sec.295.201-295.216, 295.218-295.220
The Texas Department of Health (department), by majority vote of the Texas Board 
of Health (board) on April 17, 1998, enters this order finally adopting 
amendments to sec.sec.295.201-295.216 and 295.218-295.220, concerning the 
certification and accreditation for lead-based paint activities in target 
housing and child-occupied facilities. Sections 295.201, 295.202, 295.204-
295.210, 295.212, 295.214, 295.219 and 295.220 are adopted with changes to the 
proposed text as published in the December 12, 1997, issue of the Texas Register 
(22 TexReg 12225). Sections 295.203, 295.211, 295.213, 295.215, 295.216 and 
295.218 are adopted without changes and therefore will not be republished. 
These amendments comply with House Bill 729, 75th Legislature, 1997, to expand 
the department's existing rules by including child-occupied facilities. Also, 
these amendments will bring Texas into compliance with the U.S. Environmental 
Protection Agency's (EPA) final lead-based paint regulations in order to become 
an EPA authorized state, thus allowing the department to assume full authority 
for the state lead certification and accreditation program. 
These amendments provide for new definitions, new requirements for accredited 
lead training providers and future applicants, the requirements of a state 
examination and a fee in order to obtain certification, provisions for 
application denial for failure to pass the state exam, provision for 
reimbursement of fees, new requirements or new language added for clarification 
purposes on standards for conducting lead inspections, lead risk assessments, 
lead hazard screens, and lead abatements, new language and requirements for 
certified firms to notify the department of its abatement activities, exemption 
of certification fees to certain federal, state or local government employees, 
and new language to clarify the department's manner of assessing administrative 
penalties.
The following is a summary of comments received. Following each comment is the 
department's response. 
Comment: Concerning sec.295.201(c), one commenter suggested the typographical 
error "ther" be corrected to read "other." 
Response: The department agrees and has made the correction. 
Comment: Concerning sec.295.202, the definitions of "Certified Lead Abatement 
Worker," "Certified Lead Firm," "Certified Lead Inspector," "Certified Lead 
Abatement Project Designer," "Certified Lead Risk Assessor," and "Certified Lead 
Abatement Supervisor," one commenter stated that these definitions indicate that 
such individuals must be certified by the Texas Department of Health. However, 
these definitions do not indicate that these individuals must be trained by an 
accredited training program. EPA 40 CFR 745.223 indicates that proper training 
must take place prior to becoming certified in one of these disciplines. 
Response: The department disagrees that the reference to accredited training 
needs to be included in the definition since the requirement of training to 
become certified by the department is provided under the "Specific Requirements" 
section for each discipline. No change was made as a result of this comment.
Comment: Concerning the definition of "Certified Lead Inspector," one commenter 
recommended deleting the second sentence "Inspectors, dust and soil" which is 
incomplete. 
Response: The department agrees and has made the modification. 
Comment: One commenter asked two questions concerning the definition of a 
"child-occupied facility" found in sec.295.202: 1) for day care centers in 
churches, would the entire church building be considered a child-occupied 
facility, or just the area where the day care center is housed; 2) if children 
use certain parts of a school such as the gym, would the entire structure be 
considered a child-occupied facility? 
Response: The definition of "child-occupied facility" includes "a building, or 
part of a building, constructed before 1978, that is visited regularly, by the 
same child, six years of age or younger, on at least two different days in any 
seven-day period beginning on Sunday and ending on Saturday, if each day's visit 
lasts at least three hours, the combined weekly visits last at least six hours, 
and the combined annual visits last at least 60 hours. The term may include, but 
is not limited to, day-care centers, preschools, or kindergarten classrooms." 
Concerning the scenarios the commenter presented, only that portion of the 
building, i.e. the daycare center, would be subjected to the rule, but not the 
entire building unless it meets the definition. No change was made as a result 
of this comment. 
Comment: One commenter stated there was no definition for "containment" in the 
Texas Environmental Lead Reduction Rules. 
Response: "Containment" is defined in the existing rules and remains unchanged 
in the proposed rules, therefore the definition was not published in the 
December 12, 1997, issue of the Teas Register (22 TexReg 12225) for public 
comment. No change was made as a result of this comment.
Comment: Concerning sec.295.202(A)(i) in the definition of "lead abatement," one 
commenter recommended changing the term "permanent containment" to "permanent 
enclosure" since "containment" is not a method of lead-based paint abatement.
Response: The department agrees with the commenter and has modified the 
definition. 
Comment: Concerning sec.295.202(A)(iii)(I) in the definition of "lead 
abatement," one commenter recommended adding the words "or to" between the words 
"in" and "target housing." 
Response: The department agrees and has made the modification. 
Comment: Concerning sec.295.202(A)(iii)(II) in the definition of "lead 
abatement," one commenter suggested we define "undesignated head." 
Response: The department recognizes the concern of the commenter regarding this 
section. However, since there was not a proposed change to this section of the 
rule published for public comment, the department is unable to address or change 
the rule, therefore, no change was made as a result of this comment. The 
department, nevertheless, will be mindful of this comment in any future proposed 
rule amendments. 
Comment: Concerning sec.295.202(A)(iii)(II-IV) in the definition of "lead 
abatement," one commenter suggested that the use of the word "involving" in 
these paragraphs may make them less protective of human health and the 
environment. Paragraphs 3(ii) and (iii) of the abatement definition found in EPA 
40 CFR 745.223 uses the word "resulting" instead. 
Response: The department recognizes the concern of the commenter regarding this 
section. However, since there was not a proposed change to this section of the 
rule published for public comment, the department is unable to address or change 
the rule, therefore, no change was made as a result of this comment. The 
department, nevertheless, will be mindful of this comment in any future proposed 
rule amendments. 
Comment: Concerning sec.295.202(B)(iii) in the definition of "lead abatement," 
one commenter asked that we define what is meant by the term demolition. In some 
instances, demolition may mean completely gutting the interior walls and 
fixtures from a dwelling prior to a remodeling activity. 
Response: Webster's dictionary definition of the word "demolition" states "the 
act of demolishing." Furthermore, Webster's dictionary definition of "demolish" 
states "tear down, raze, to break to pieces, smash, to do away with, destroy." 
The department will rely on these dictionary definitions relating to this term. 
The department does not interpret that demolition refers to a remodeling or 
renovation activity where partial removal or change of structures occurs but 
still leaves the building in place. No change was made as a result of this 
comment. 
Comment: Concerning the definition of "lead-based paint activity," one commenter 
stated that this definition contains the terms "testing," "risk reduction," 
"lead abatement project design or planning," "removal," and "creation of lead-
based paint hazards." These terms are not defined in sec.295.202. Work practice 
standards are not provided for these activities in sec.295.212. Section 
295.213(a) states "Lead-based paint activities, as defined in sec.295.202 of 
this title (relating to definitions) shall only be conducted according to the 
procedures and standards contained in sec.295.212 of this title (relating to 
Standards for Conducting Lead-Based Paint Activities)." If Texas plans to 
include these terms as lead-based paint activities, shouldn't they be defined 
and work practice standards developed for them? 
Response: The definition of "lead-based paint activity" is taken from Senate 
Bill 544 and House Bill 729. Since there are no procedures and standards for the 
terms "lead abatement project design or planning" or "creation," the department 
does not propose any definition at this time. We consider the term "risk 
reduction" to be the same as the term "reduction" whose definition has been 
added as the result of another comment. A definition of the term "testing" has 
been added since this term is referenced in these rules. 
Comment: One commenter stated "Paint in Poor Condition" was not defined in these 
regulations. The department should include the federal definition in their rules 
since it impacts the work performed by risk assessors. 
Response: Although the federal rules use the term "paint in poor condition," the 
state's rules or proposed rules do not include this term. Since "paint in poor 
condition" is a limiting factor when referring to lead hazard screens and risk 
assessments, the department believes that the state's rules are more protective 
of public health, therefore, the department believes it is not necessary to 
include the federal definition in its rules. No change was made as a result of 
this comment. 
Comment: One commenter stated a definition for "Reduction" was not found in 
these regulations. 
Response: The department agrees and has added this definition using the language 
per EPA 40 CFR 745.223. 
Comment: Concerning the definition of "zero-bedroom dwelling," one commenter 
suggested inserting ", but is not limited to," between "The term includes" and 
"efficiencies" in the second sentence of the definition. 
Response: The department agrees and has made the modification. 
Comment: Concerning sec.295.204(a)(3), one commenter recommended correcting the 
wording of the phrase "without receiving accreditation" to "without first 
receiving accreditation." 
Response: The department agrees and has added the word "first" in the sentence.
Comment: Concerning sec.295.204(b), one commenter suggested that we add a waiver 
of liability, such as the language found in sec.295.205(g): "Failure by the 
department to send the timely reminder notice creates no liability to the 
department and does not relieve the applicant of the obligation to file a timely 
renewal application." 
Response: The department agrees and has added the necessary language for waiver 
of liability in sec.295.204(b). 
Comment: Concerning sec.295.204(c)(3), a commenter questioned whether the rule, 
"If a training program provider's application is disapproved, the program may 
reapply for accreditation at any time by following the procedures in subsections 
(b) and (c) of this section," is always true, and what happens if the training 
program provider's accreditation has been suspended or revoked?
Response: This rule applies only to the initial application process, and unless 
a training program provider's accreditation has been suspended or revoked, they 
can reapply at any time if their application has been disapproved. Section 
295.219 applies to accreditation, suspension, or revocation. No change was made 
as a result of this comment. 
Comment: Concerning sec.295.204(c)(4), one commenter suggested to clarify fee 
requirements, we add an additional clause at the end of the second sentence, 
"and submits the additional fees cited in (b) of this section." 
Response: The department recognizes the concern of the commenter regarding this 
section. However, since there was not a proposed change to this section of the 
rule published for public comment, the department is unable to address or change 
the rule, therefore, no change was made as a result of this comment. The 
department, nevertheless, will be mindful of this comment in any future proposed 
rule amendments. 
Comment: Concerning sec.295.204(d) and (d)(1), a commenter asked if this section 
requires a training program provider to employ a training manager for each 
discipline. 
Response: No. As stated, only one training manager is required for each 
provider. No change was made as a result of this comment. 
Comment: Concerning sec.295.204(d)(1), one commenter suggested including a 
description of the training manager's responsibilities. 
Response: The commenter's suggestions are covered in sec.295.204(d)(7)(A), 
(d)(7)(B), (d)(9) and (d)(11). See also sec.295.204(d)(12), (d)(14), and 
(d)(15), which are new responsibilities for the training program manager 
resulting from other comments received by the department. 
Comment: Concerning sec.295.204(d)(2)(A), one commenter has suggested that to 
add clarity, we should consider replacing "worker/adults" with "worker or 
adults." This language would also be consistent with sec.295.204(d)(1)(A).
Response: The department recognizes the concern of the commenter regarding this 
section. However, since there was not a proposed change to this section of the 
rule published for public comment, the department is unable to address or change 
the rule, therefore, no change was made as a result of this comment. The 
department, nevertheless, will be mindful of this comment in any future proposed 
rule amendments. 
Comment: Concerning sec.295.204(d)(2)(B), a commenter recommended that wording 
be added to clarify that the EPA model course curriculum is lead-specific as 
well. 
Response: The department agrees and has added the language for clarification 
purposes. 
Comment: Concerning sec.295.204(d)(2)(C), one commenter is concerned that "lead 
discipline" is not defined. 
Response: Please refer to the definition "Discipline" in sec.295.202 in the 
original rules which remains unchanged in the proposed rules. 
Comment: Concerning sec.295.204(d)(6)(B), a commenter stated that the lead risk 
assessor course must provide at least four hours of hands-on training activities 
to be considered as protective as federal training standards. 
Response: The requirement for four hours of hands-on training activities is 
already stated in sec.295.204(d)(6)(B). 
Comment: Concerning sec.295.204(d)(6)(C), one commenter suggested we consider 
replacing "hands-on activities" with "hands-on training activities."
Response: The department agrees and has made this change. 
Comment: Concerning sec.295.204(d)(6)(D), a commenter found an error published 
in the December 12, 1997, issue of the Texas Register (22 TexReg 12230); the 
reference to subsection (3)(4) should be (e)(4). 
Response: The department agrees and the correction has previously been published 
in the Texas Register dated January 30, 1998 (23 TexReg 857).
Comment: Concerning sec.295.204(d)(7), a commenter felt that since hands-on 
training activities are not required for each course, it is necessary to include 
the following language: "shall conduct a course test and a hands-on skills 
assessment, if applicable, at the completion of the course..." 
Response: The department agrees with this comment and has changed the section to 
read as follows: "shall conduct a course test, and if applicable, a hands-on 
skills assessment at the completion of the course...." 
Comment: Concerning sec.295.204(d)(8)(C), a commenter recommended we add the 
date the student passed the exam, i.e., "date of course completion/test 
passage." 
Response: The department recognizes the concern of the commenter regarding this 
section. However, since there was not a proposed change to this section of the 
rule published for public comment, the department is unable to address or change 
the rule, therefore, no change was made as a result of this comment. The 
department, nevertheless, will be mindful of this comment in any future proposed 
rule amendments. 
Comment: Concerning sec.295.204(d)(12), a commenter recommended that the wording 
be changed from "The department may audit the training program provider" to "The 
training program manager shall allow the department to audit the training 
program." 
Response: The department agrees with commenter's recommendation and has made the 
appropriate change. 
Comment: Concerning sec.295.204(d)(13), a commenter made the recommendation of 
placing this requirement under sec.295.204(c)(1) or (c)(2). 
Response: The department recognizes the concern of the commenter regarding this 
section. However, since there was not a proposed change to this section of the 
rule published for public comment, the department is unable to address or change 
the rule, therefore, no change was made as a result of this comment. The 
department, nevertheless, will be mindful of this comment in any future proposed 
rule amendments. 
Comment: Concerning sec.295.204(d)(14), to clarify who is responsible for 
providing the department with "...a list of those individuals successfully 
completing a course...", a commenter suggested replacing the "training program 
provider" with "training program manager". 
Response: The department agrees and has made the appropriate change. 
Comment: Concerning sec.295.204(d)(15), to clarify who is responsible a 
commenter suggested inserting the wording "The training program manager shall 
furnish a copy of all scheduled courses...." 
Response: The department agrees and has made the appropriate change. 
Comment: Concerning sec.295.204(d)(15), relating to the requirement that the 
department shall be given a training course schedule seven days prior to 
teaching any courses, and shall be notified at least 24 hours in advance of any 
course cancellations or changes, one commenter asked that a provision be made 
for emergency situations, such as when a client has a job where training is 
needed immediately. 
Response: The department acknowledges that unanticipated training requests may 
arise. Accordingly, language has been added to allow for emergencies.
Comment: Concerning sec.295.204(e)(1)(C), a commenter recommended that we 
consider inserting the following language: "regulations and guidance that 
pertain to lead-based paint and lead-based paint activities....". 
Response: The department agrees and has added this wording to the section.
Comment: Concerning sec.295.204(e)(4)(B-G), one commenter was concerned that the 
training curriculum requirements are for only projects involving ten units or 
larger and do not address who will perform project design activities for 
projects involving fewer than ten units. 
Response: The department agrees. The training curriculum requirements for 
project designer training should be applicable to any size of project. 
Therefore, the department is removing the terms "large scale" and "ten units or 
larger" from these sections. 
Comment: Concerning sec.295.204(f)(2), the commenter feels we should require 
hands-on assessment (if applicable) in the refresher courses. 
Response: The department has added this requirement to be consistent with 40 CFR 
Part 745.225(e). 
Comment: Concerning sec.295.204(f)(3), the commenter feels we should add the 
hands-on assessment requirement (if applicable) in this section. 
Response: The department recognizes the concern of the commenter regarding this 
section. However, since there was not a proposed change to this section of the 
rule published for public comment, the department is unable to address or change 
the rule, therefore, no change was made as a result of this comment. The 
department, nevertheless, will be mindful of this comment in any future proposed 
rule amendments. 
Comment: Concerning sec.295.204(f)(4)(D), one commenter suggested that the 
reference be changed to sections (d) and (f) to maintain consistency with the 
program manager's certification requirements found in EPA 40 CFR 
745.225(e)(5)(iii).
Response: The department disagrees with this suggestion because the program 
manager has already provided a certified statement when they applied 
concurrently or earlier for initial course accreditation. Refer to 
sec.295.204(c)(1)(C). No change was made as a result of this comment. 
Comment: Concerning sec.295.204(f)(6), the commenter is recommending we restate 
that a fee of $100 is required for each additional course application to amend 
the accreditation per sec.295.204(b). 
Response: The department believes that the fee is adequately addressed in 
sec.295.204(b) and does not need to be restated. Accordingly, no change is 
proposed concerning this comment. 
Comment: Concerning sec.295.204(g)(4), a commenter recommended we replace the 
wording "training program provider" with "training program." This is consistent 
with the language used in sec.295.204(h)(1). 
Response: The department believes that the current wording is more appropriate 
from a responsibility standpoint. To be consistent, the word "provider" is being 
added after "training program" in sec.295.204(h)(1). 
Comment: Concerning sec.sec.295.204 (h) and 295.204(i) as published in the Texas 
Register (22 TexReg 12232) on December 12,1997, the department is proposing to 
delete the words "deaccreditation" and "deaccredit" and add the words 
"revocation" and "revoke" throughout these sections respectively. In keeping 
with the statutory authority given to the department in Article 9029, Vernon's 
Texas Civil Statutes, shouldn't the words "deaccreditation" and "deaccredit" 
remain as stated in Chapter sec.sec.295.204(h) and 295.204(i) and not be 
substituted with "revocation" and "revoke"?
Response: The department agrees and has deleted the proposed words "revocation" 
and "revoke" and replaced them with "deaccreditation" and "deaccredit" 
respectively in sec.sec.295.204(h) and 295.204(h)(1), 295.204(i), 295.204(i)(1), 
295.204(i)(1)(A),(B),(C), and (D).
Comment: Concerning sec.295.204(h)(1), the commenter had the following 
questions: are the procedures to suspend on an emergency basis adequate; and is 
there a requirement to have a hearing prior to suspension? The commenter also 
pointed out the fact that the term "training program" was used rather than 
"training program provider" in this section. 
Response: The department believes that its procedures to suspend or revoke a 
training program provider's accreditation, as described in sec.295.204(i), meet 
the immediate action concern of the commenter even though the word "immediate" 
is not used. The word "provider" has been added to sec.295.204(h)(1) to be 
consistent with other sections. 
Comment: Concerning sec.295.204(i), one commenter has the following questions: 
do the procedures for suspension, revocation or modification of training program 
accreditation include issuing a public notice; is the hearing open to the 
public; and will the department maintain a list of parties whose accreditation 
has been suspended, revoked, modified, or reinstated? 
Response: As outlined in sec.295.204(i) and sec.295.219, a public hearing is 
provided if the certified or accredited person requests it in response to the 
department's action. A notice of the department's action is not issued to the 
public, however, the hearing is open to the public and the department will 
maintain a record of suspensions or revocations in its enforcement database. No 
change was made as a result of this comment. 
Comment: Concerning sec.295.204(i)(1), the commenter has a question regarding 
whether the procedures to suspend on an emergency basis are adequate as there is 
no procedure described for immediate action. 
Response: As stated in its response to the comment concerning sec.295.204(h)(1), 
the department believes that its procedures to suspend or revoke are adequate to 
address the commenter's concern for immediate action. No change was made as a 
result of this comment. 
Comment: Concerning sec.295.205(c)(14), a commenter stated that the EPA 
regulations do not allow an individual to take the certification exam more than 
three times in six months after receiving a course completion certificate. The 
individual must then retake the appropriate course from an accredited training 
provider before reapplying for certification. Therefore, the state's "30-day 
waiting period" is considered "less protective" than the EPA regulations. In 
addition, this conflicts with the state certification examination criteria cited 
in sec.sec.295.206(c)(5), 295.207(c)(5), and 295.208(c)(5). 
Response: The department agrees with the commenter and has deleted "- 30 days" 
from sec.295.205(c)(14). 
Comment: Concerning sec.295.205(f)(4), a commenter suggested replacing "chief" 
with "branch chief" to remain consistent with the use of "branch chief" in this 
same subsection. 
Response: The department disagrees with this suggestion as the context of the 
wording, "chief, Environmental Lead Branch," is for salutatory purposes as to 
how to address a letter to the department. The latter use of the wording "branch 
chief" is used in a different context to simply identify a department employee 
who gives information to another department employee. No change was made as a 
result of this comment. 
Comment: Concerning sec.sec.295.205(g), 295.206(g), 295.207(g), 295.208(g), 
295.209(e), and 295.210(d), a commenter wanted to know how quickly the 
department could issue a renewal certificate and what is the deadline to submit 
an application for renewal to ensure that the application is processed to avoid 
a lapsed certificate. 
Response: According to sec.295.205(f)(1), the department is required to process 
applications within 60 days of receipt, although the current average turnaround 
time is about 14 days. To further clarify sec.295.205(f)(1) regarding 
applications, the department has inserted the words "or renewal" after the word 
"certification." For consistency, these words have also been added to 
sec.295.205(a). The department notes that sec.295.205(g) involves the 
department's procedures to remind certified individuals and firms that their 
annual certification fee is due or their three-year certification is up for 
renewal. The department responds to the second part of the commenter's question 
by pointing out that there is no stated deadline for submission of a renewal 
application, but rather the certified person or firm is accountable to renew 
their certification before its expiration date. To allow an earlier submission 
if an applicant desires, the words "no sooner than 60 days" have been deleted 
from sec.295.205(h). 
Comment: Concerning sec.295.205(j), a commenter wanted to know if a written 
request was adequate assurance that the individual requesting the replacement 
certificate/ID card is the appropriate person. In addition, the commenter wanted 
to know how quickly an individual could obtain a replacement? 
Response: The department believes that a written and signed request from the 
certified person as stated in the proposed rule, is adequate for certificate 
replacement. The department has added the words "or firm" after the word 
"person" in this section for further clarification. All certificates and/or 
identification (ID) cards, as appropriate, are sent out via certified mail only 
to the certified individual or firm listed on the certificate. Although there is 
no regulatory time period for the department to respond to a replacement 
request, all replacement requests should be handled within seven working days of 
receipt of the request. No change was made as a result of this comment. 
Comment: Concerning sec.295.206(a), a commenter recommended that the wording, 
"by the Department" be inserted after the word "certified" in the first 
sentence. 
Response: The department agrees with this comment and in order to offer further 
clarification, the suggested wording has been added to sec.295.206(a) as well as 
to sec.sec.295.207(a), 295.208(a), 295.209(a), and 295.210(a) for consistency. 
Comment: Concerning sec.sec.295.206(b)(2), 295.207(b)(2), 295.208(b)(2), 
295.209(b)(2), and 295.210(b)(2), a commenter was concerned that since EPA 
requires individuals seeking certification based on prior training to 
successfully complete an accredited refresher course and for certain disciplines 
to pass a certification examination (40 CFR sec.745.226(d)(1)(i)(C) & (D)), 
these paragraphs of the state's rules were "less protective." 
Response: The proposed rules are not less protective than EPA's rules in that 
sec.sec.295.206(b)(1)(A), 295.207(b)(1)(A), 295.208(b)(1)(A), 295.209(b)(1)(A), 
and 295.210(b)(1), require an individual applicant for certification to 
successfully complete an appropriate training course from a department-
accredited training program provider, and sec.sec.295.206(b)(1)(B), 
295.207(b)(1)(B), and 295.208(b)(1)(B), require any individual who makes 
application for certification to pass the state certification examination. The 
training requirements are found in sec.sec.295.206(d), 295.207(d), 295.208(d), 
295.209(b)(2), and 295.210(b)(2), which allow, until June 1, 1998, individuals 
to fulfill these training requirements who have completed an appropriate 
training course between October 1, 1990, and August 31, 1996, from a non-
accredited training program provider who has utilized the appropriate EPA model 
course curriculum. After June 1, 1998, prior training will not be accepted, 
except from a department-accredited training provider. This is actually more 
protective than the alternative training allowed by the EPA in 40 CFR 
sec.745.226(d)(i)(C) and (D). In addition, since the lead certification program 
in Texas has been in existence since February 19, 1996, and numerous individuals 
have already been certified since that date, an exception to the certification 
examination requirement was made in sec.sec.295.206(b)(2), 295.207(b)(2), 
295.208(b)(2), in order to exempt those individuals who have made application 
for certification prior to June 1, 1998, from taking the certification 
examination. No change was made as a result of this comment. 
Comment: Concerning sec.sec.295.206(c)(5) and 295.206(f), a commenter was 
concerned that the language in these sections provided a "loop-hole" for 
individuals to perform lead-based paint activities with expired training 
certificates. Since the training course certificate is valid for three years 
from the date of training according to sec.295.204(d)(8)(D), and the training 
course must be completed before becoming certified for three years according to 
sec.sec.295.206(b)(1)(A) and 295.206(a), an individual's training course 
certificate will expire prior to the expiration of the individual's 
certification. The commenter asked if this means that an inspector's training 
certificate could expire six months prior to their certification expiration date 
and whether this is a loop-hole for individuals to perform lead-based paint 
activities with expired training certificates? The commenter concluded by 
stating that this concern would apply to the other disciplines as well. 
Response: As written now, a training certificate with an expiration date could 
expire before the person's certification expiration date. This is not considered 
a "loop-hole" because there is no requirement that a training certificate's 
time-frame be the same as the certification period. In order to close any 
perceived "loop-hole," the department is deleting sec.295.204(d)(8)(D), and to 
further clarify when a refresher course must be taken, the department is adding 
"no sooner than 180 days" between "provider" and "prior" in sec.sec.295.206(f), 
295.207(f), 295.208(f), 295.209(d), and 295.210(c) and has added the words "from 
a department-accredited training program provider" after the word "courses" in 
sec.295.207(f) for consistency. For further clarification, the department has 
also changed the word "certificate" to "certification" in these sections as well 
as in sec.sec.295.205(g), 295.206(a), 295.207(a), 295.208(a), 295.209(a), and 
295.210(a). 
Comment: Concerning sec.295.206(d) a commenter stated this section refers to 
paragraph (c)(1)(A), but this paragraph does not exist. 
Response: As proposed and written, sec.295.206(d) refers to 
sec.295.206(b)(1)(A), which does exist. No change was made as a result of this 
comment. 
Comment: Concerning sec.sec.295.207(b)(1)(A) and (c)(1), 295.208(b)(1)(A) and 
(c)(1), 295.209(b)(1)(A), and 295.210(b)(1), in reference to sec.295.215(a) and 
(c), a commenter wanted to know if reciprocity allows the individual to complete 
a lead risk assessor course and receive a course completion certificate from a 
state which has received EPA authorization to administer and enforce a state 
certification and training program, or does the state intend to have the 
individual complete a course from a department-accredited training program or to 
take and pass the state certification examination. 
Response: The intent of sec.295.215(a) and (c) is to allow individuals in other 
states who have been certified through EPA-authorized programs in those states 
to obtain reciprocal certification in Texas provided they become certified 
according to the terms of 25 Texas Administrative Code (TAC) Chapter 295 (Texas 
Environmental Lead Reduction Rules), including making application to the state 
of Texas and paying the appropriate fees. Section 295.215(c) already states that 
out-of-state education, experience, and training can be accepted for the purpose 
of qualifying for Texas certification. Therefore, individuals who have been 
certified through EPA-authorized programs in other states, which included taking 
a federally mandated examination for certain disciplines, would be considered 
for reciprocal certification. In addition, when an applicant who is certified by 
another state applies to the department for reciprocal certification, the 
department intends to have the applicant sign a statement on their application 
that they have received, read, and understood the Texas Environmental Lead 
Reduction Rules. No change was made as a result of this comment. 
Comment: Concerning sec.sec.295.207(d), 295.208(d), 295.209(b)(2), and 
295.210(b)(2), a commenter wanted to know if the "grandfathering" provision will 
apply to individuals who have received training from other states, and is the 
"grandfathering" provision described in this paragraph consistent with the 
reciprocity conditions presented in sec.295.215? 
Response: Individuals who have been certified through EPA-authorized programs in 
other states will be granted reciprocal certification provided they become 
certified according to the "terms" of 25 TAC Chapter 295 (Texas Environmental 
Lead Reduction Rules). Therefore, training from another state which also has a 
"grandfathering" provision will be accepted provided that the EPA has granted 
authorization to that state's program. Therefore, the "grandfathering" provision 
described in sec.sec.295.207(d), 295.208(d), 295.209(b)(2), and 295.210(b)(2) is 
consistent with the reciprocity conditions presented in sec.295.215. No change 
was made as a result of this comment. 
Comment: Concerning sec.295.207(e)(6), a commenter stated that this subparagraph 
indicates a certified lead risk assessor can perform the same duties of a 
certified lead inspector as specified in sec.295.206(f). In reading 
sec.295.206(f), this subsection only describes the lead inspector certification 
renewal requirements. It appears the reference in sec.295.207(e)(6), should be 
sec.295.206(e) "Responsibilities," instead of sec.295.206(f). 
Response: The department agrees and has made this change. 
Comment: Concerning sec.295.208(e)(7), a commenter suggested making the wording 
"be available" more specific or citing the section where this requirement is 
specifically described in sec.295.212(d)(2). 
Response: The department agrees with this comment for clarification purposes and 
has added the wording to sec.295.208(e)(7) "as described in sec.295.212(d)(2)" 
right after the wording "at all times." 
Comment: Concerning sec.295.212(a)(2), one commenter suggested including shall 
be "selected according to documented methodologies." 
Response: The department agrees and has added this language. 
Comment: Concerning "sec.295.212(b)(2)(A)," one commenter questioned the 
numbering system. 
Response: It appears that there are two "A's". However, closer examination 
reveals that the first "A" is the start of the sentence. No change is proposed.
Comment: Concerning sec.295.212(b)(2)(A)(iii), one commenter stated that this is 
not necessarily a visual inspection. 
Response: The department agrees and has moved proposed sec.295.212(b)(2)(A)(iii) 
to new sec.295.212(b)(2)(A), and therefore will cause the rest of the paragraph 
to renumber in order. 
Comment: Concerning proposed sec.295.212(b)(2)(B), one commenter requested 
clarification if there was an intention to test deteriorated paint without a 
distinct painting history. 
Response: The intent is to test all deteriorated paint including that which has 
a distinct painting history. To clarify this, the department has added the words 
"and having a distinct painting history" to new sec.295.212(b)(2)(C) (previously 
sec.295.212(b)(2)(B)). 
Comment: Concerning sec.295.212(b)(5)(B), one commenter recommended replacing 
"desirability for" with "appropriateness of a." 
Response: The department recognizes the concern of the commenter regarding this 
section. However, since there was not a proposed change to this section of the 
rule published for public comment, the department is unable to address or change 
the rule, therefore, no change was made as a result of this comment. The 
department, nevertheless, will be mindful of this comment in any future proposed 
rule amendments. 
Comment: Concerning sec.295.212(c)(2), one commenter suggested inserting "as 
determined by documented methodologies" at the end of the second sentence.
Response: The department agrees with the commenter's suggestion and has inserted 
the language "using documented methodologies" after the word "tested" in 
sec.295.212(c)(2). 
Comment: Concerning sec.295.212(c)(5), one commenter stated that the reference 
for paragraph (4) does not appear to be correct as it discusses requirements for 
dust sampling. The commenter asked if the intended reference was contained in 
the second sentence of paragraph (2) in this subsection.
Response: The department disagrees. The second sentence of paragraph (2) applies 
to all risk assessments, whether residential, multifamily, or child-occupied 
facility. The reference to paragraph (4) is correct, but the department deleted 
the reference and restated the requirement to eliminate confusion. Section 
295.212(c)(5) now reads: "For multi-family dwellings and child-occupied 
facilities, dust samples (composite or single-surface samples) from the window 
and floor shall be collected in all living areas where one or more children six 
years of age or younger are most likely to come into contact with dust. In 
addition, window and floor dust samples (composite or single-surface samples) 
shall be collected in the following locations...". 
Comment: Concerning sec.295.212(c)(5)(B), one commenter suggested that "...may 
pose a lead-based paint hazard to one or more children age six years of age or 
younger" should be restated as "...that one or more children, age six and under, 
are likely to come into contact with dust." 
Response: The department agrees and the change has been made. 
Comment: Concerning sec.295.212(c)(9)(P), one commenter recommended the 
inclusion of the results, not an evaluation of any previous inspections or 
analysis, or other assessment. The commenter went on to state that there was no 
objection if both were included. 
Response: The department recognizes the concern of the commenter regarding this 
section. However, since there was not a proposed change to this section of the 
rule published for public comment, the department is unable to address or change 
the rule, therefore, no change was made as a result of this comment. The 
department, nevertheless, will be mindful of this comment in any future proposed 
rule amendments. 
Comment: Concerning sec.295.212(c)(9)(R), one commenter suggested rearranging 
the last sentence to add clarity. 
Response: The department agrees and has added the necessary language for clarity 
purposes. 
Comment: Concerning sec.295.212(d)(7)(B), one commenter suggested referring to 
the definition of permanently covered soil as added language. 
Response: The department recognizes the concern of the commenter regarding this 
section. However, since there was not a proposed change to this section of the 
rule published for public comment, the department is unable to address or change 
the rule, therefore, no change was made as a result of this comment. The 
department, nevertheless, will be mindful of this comment in any future proposed 
rule amendments. 
Comment: Concerning sec.295.212(d)(8)(E)(ii), one commenter stated it was not 
clear how many rooms need to be sampled after conducting an abatement without 
containment. 
Response: The department agrees and has inserted the necessary language to 
clarify this rule. 
Comment: Concerning sec.295.212(g), one commenter stated that the title of 
"sec.745 Subpart F" as referenced in this paragraph is not correct, that it is 
"Disclosure of Known Lead-based Paint and/or Lead-based Paint Hazards Upon Sale 
or Lease of Residential Property." 
Response: The department agrees and has made the correction. 
Comment: Concerning sec.295.214(f), one commenter asked for clarification on 
what constitutes a "lead incident." 
Response: The department considers a lead incident to be a situation caused by 
either adverse weather conditions or mechanical failure that would cause lead-
based paint to deteriorate or fail to such a point that human health and the 
environment could be negatively effected. Examples could include water pipes 
bursting, water damage due to floods, and fire damage. No change was made as a 
result of this comment. 
Comment: With regard to sec.295.214(g)(3), one commenter was concerned that the 
proposed amendment fee for each change in a project's start and/or stop-date 
would incur too many costs, as many times it is difficult to establish a stop-
date due to supplier/contractor problems. 
Response: The department understands that the amendment fee could be overly 
burdensome, as many times there are unforeseen circumstances during abatement 
projects. Therefore, the amendment fee language has been removed from 
sec.295.214(g)(3). However, the requirement mentioned in sec.295.214(d) to 
notify both the Environmental Lead Notification Section (ELNS) and the 
appropriate regional office of changed start and/or stop-dates will still stand. 
Comment: Concerning sec.sec.295.219 Section Title, 295.219(a), 295.219(b) and 
295.219(e), the words "revocation" and "revoke" are used. In keeping with the 
statutory authority given to the department in Article 9029, Vernon's Texas 
Civil Statutes, shouldn't the words "deaccreditation," "deaccredit," 
"decertification," and "decertify" be used instead? 
Response: The department agrees and has changed the words and language in 
sec.sec.295.219 Section Title, 295.219(a), 295.219(b), and 295.219(e) to reflect 
the language found in Article 9029, Vernon's Texas Civil Statutes.
Comment: Concerning sec.295.219, one commenter suggested including flexible 
remedies (warning letters, notices of noncompliance, notices of violation, or 
the equivalent). 
Response: The suggested flexible remedies are adequately addressed in the 
department's enforcement policies and should not be addressed in rules. No 
change was made as a result of this comment. 
Comment: Concerning sec.295.219(b)(5), one commenter suggested adding "and 
performing work requiring certification at the job site." 
Response: The department disagrees as this section is intended to reprimand, 
suspend or revoke certification or accreditation for any certified or accredited 
person. The commenter's suggestion is addressed in sec.295.220 entitled 
"Compliance: Administrative Penalty." No change was made as a result of this 
comment. 
Comment: Concerning sec.295.219(b)(7), one commenter stated that it appears that 
the published rules printed proposed language as deleted text in the December 
12, 1997, issue of the Texas Register (22 TexReg 12242).
Response: The department agrees and the correction has been made. 
Comment: Concerning sec.295.219(c), one commenter suggested including a 
description of types of actions that may prompt a suspension versus those types 
of actions that may prompt a revocation. 
Response: The department believes that these items are adequately addressed in 
sec.295.219(b)(5). No change was made as a result of this comment. 
Comment: Concerning sec.295.220(a), one commenter wanted to know if the 
administrative penalties would be assessed in addition to the sanctions 
discussed in sec.295.219. 
Response: The administrative penalties could be assessed along with the 
sanctions of sec.295.219. No change was made as a result of this comment.
Comment: Concerning sec.295.220(a), one commenter wanted to know if violators 
would be subject to criminal sanctions as well as those mentioned in 
sec.sec.295.219 and 295.220. 
Response: Violators may be subject to criminal penalty as well as other action 
and administrative penalty provided in sec.sec.295.219 and 295.220. Criminal 
penalty is provided and enforceable by existing statute, and therefore no rule 
change is necessary. No change was made as a result of this comment.
Comment: Concerning sec.sec.295.220(f)(1)(B), 295.220(f)(2)(A), and 
295.220(f)(3)(B), one commenter wanted to know if these paragraphs apply to 
training providers, certified individuals and/or firms. 
Response: Section 295.220(f)(1)(B) applies to certified individuals and firms 
but does not apply to training providers since they are accredited rather than 
certified. Sections 295.220(f)(2)(A) and 295.220(f)(3)(B) apply to anyone, 
unless otherwise exempt, who performs lead-based paint abatement on target 
housing or child-occupied facilities and refers to notification requirements as 
referenced in sec.295.214. No change was made as a result of this comment.
Comment: Concerning sec.295.220(f)(1)(B), the word "revoked" is proposed. 
Shouldn't this be decertified? 
Response: The department agrees and has deleted the word "revoked" and added 
"decertified" in sec.295.220(f)(1)(B). 
Comment: Concerning sec.295.220(f)(1)(C), one commenter wanted to know if 
violations are assessed per occupant protection plan and how it would apply if a 
firm conducted five abatements and never developed or implemented a plan.
Response: Violations are assessed per day, per violation, so if a firm conducted 
five abatements and never developed or implemented an occupant protection plan, 
it could be five separate violations. No change was made as a result of this 
comment. 
Comment: Concerning sec.295.220(f)(1)(D), one commenter asked if violations are 
assessed per class instructed or per person attending the class (i.e. 12 persons 
in the class were issued fraudulent certificates). 
Response: Violations are assessed per day, per violation, therefore in the case 
of 12 individuals who attended one class and were issued fraudulent 
certificates, 12 separate violations could be assessed. No change was made as a 
result of this comment. 
Comment: Concerning sec.295.220(f)(1)(E), one commenter suggested including the 
phrase "heat guns that operate at 1100 degrees Fahrenheit or above." 
Response: The department agrees and has made the addition. 
A public hearing was held on January 7, 1998, in Austin, Texas. Several 
individuals and the following organizations provided the comments: U.S. 
Environmental Protection Agency, the city of Houston, NATEC, Inc, and the Texas 
Department of Health. The commenters were generally supportive of the rules. 
However, they had questions, comments, suggestions, and concerns about specific 
sections.
The amendments are adopted under Texas Civil Statutes, Article 9029, which 
provides the Texas Department of Health with the authority to establish a 
program for certification and accreditation for lead-based paint activities in 
target housing; House Bill 729, 75th Legislature, 1997, which amended Article 
9029 by adding child-occupied facilities and by Health and Safety Code 
sec.12.001 which provides the Texas Board of Health (board) with authority to 
adopt rules to implement every duty imposed by law on the board, department, and 
commissioner of health.

sec.295.201. General Provisions. 
(a) Purpose. The purpose of these sections is to establish the means to control 
and minimize public exposure to lead by regulating lead-based paint activities 
in target housing and child-occupied facilities. 
(b) Scope (for the purposes of certification and accreditation).
(1) Rules application. These sections contain procedures and requirements for 
the accreditation of lead training providers, procedures and requirements for 
the certification of individuals and firms engaged in lead-based paint 
activities and standards for performing such activities in target housing and, 
effective June 1, 1998, child-occupied facilities. These sections also require 
that all lead-based paint activities in target housing and child-occupied 
facilities be performed by certified individuals. 
(2) Exclusions. These sections do not apply to housing for the elderly or 
persons with disabilities, unless a child who is six years of age or younger 
resides or is expected to reside in that housing, nor do these sections apply to 
target housing with zero bedrooms. These sections also do not apply to persons 
who perform lead activities within residences which they own, unless the 
residence is occupied by a person or persons other than the owner or the owner's 
immediate family while the activities are being conducted or a child residing in 
the building has been identified as having an elevated blood lead level. 
(c) Severability. Should any section or subsection in this chapter be found to 
be void for any reason, such finding shall not affect any other sections. 

sec.295.202. Definitions. 
The following words and terms, when used with these sections, shall have the 
following meaning. 
Accessible surface-An interior or exterior surface painted with lead-based paint 
that is accessible to a young child to mouth or chew.
Act-Senate Bill 544 as amended by House Bill 729, 75th Legislature, 1997, 
codified at Texas Civil Statutes, Article 9029. 
Certified lead abatement worker-A person who has been certified by the 
department to perform abatements, as defined by this section. 
Certified lead firm-A company, contractor, partnership, corporation, sole 
proprietorship, association, or other business entity that performs lead-based 
paint activities, and that has been certified by the department. 
Certified lead inspector-A person who has been certified by the department to 
conduct lead inspections. Inspectors may also sample dust and soil for the 
purposes of abatement cleanup and clearance testing. 
Certified lead abatement project designer-A person who has been certified by the 
department to prepare lead abatement project designs, occupant protection plans, 
and abatement reports. 
Certified lead risk assessor-A person who has been certified by the department 
to conduct lead risk assessments, lead inspections and lead hazard screens. Risk 
assessors may also sample dust and soil for the purposes of lead abatement 
cleanup and clearance testing. 
Certified lead abatement supervisor-A person who has been certified by the 
department to supervise and conduct lead abatements, and to prepare occupant 
protection plans and abatement reports. 
Child-occupied facility-A building, or part of a building, constructed before 
1978 that is visited regularly by the same child, six years of age or younger, 
on at least two different days in any seven-day period beginning on Sunday and 
ending on Saturday, if each day's visit lasts at least three hours, the combined 
weekly visits last at least six hours, and the combined annual visits last at 
least 60 hours. The term may include, but is not limited to, day-care centers, 
preschools, or kindergarten classrooms. 
Clearance levels-Values that indicate the maximum amount of lead permitted in 
dust on a surface following completion of an abatement activity. Clearance 
levels that are appropriate for the purposes of these regulations may be found 
in the Environmental Protection Agency Guidance on Residential Lead-Based Paint, 
Lead-Contaminated Dust, and Lead-Contaminated Soil (60 Federal Register 47248 
(1995)). 
Common area-A portion of target housing or a child-occupied facility that is 
generally accessible to all occupants. Such an area may include, but is not 
limited to, hallways, stairways, laundry and recreational rooms, playgrounds, 
community centers, garages, and boundary fences. 
Component or building component-Specific design or structural elements or 
fixtures of target housing or a child-occupied facility that are distinguished 
from each other by form, function, and location. These include, but are not 
limited to, interior components such as: ceilings, crown molding, walls, chair 
rails, doors, door trim, floors, fireplaces, radiators and other heating units, 
shelves, shelf supports, stair treads, stair risers, stair stringers, newel 
posts, railing caps, balustrades, windows and trim (including sashes, window 
heads, jambs, sills or stools and troughs), built-in cabinets, columns, beams, 
bathroom vanities, counter tops, and air conditioners; and exterior components 
such as: painted roofing, chimneys, flashing, gutters and downspouts, ceilings, 
soffits, fascias, rake boards, cornerboards, bulkheads, doors and door trim, 
fences, floors, joists, lattice work, railings and railing caps, siding, 
handrails, stair risers and treads, stair stringers, columns, balustrades, 
window sills or stools and troughs, casings, sashes and wells, and air 
conditioners. 
Documented methodologies-Methods or protocols used to sample for the presence of 
lead in paint, dust, and soil. Documented methodologies may be found in the 
United States Department of Housing and Urban Development (HUD) Guidelines for 
the Evaluation and Control of Lead-Based Paint Hazards in Housing (1995); the 
EPA Guidance on Residential Lead-Based Paint, Lead-Contaminated Dust, and Lead-
Contaminated Soil (60 Federal Register 47248 (1995)); the EPA Residential 
Sampling for Lead: Protocols for Dust and Soil Sampling, EPA report number 747-
R-95-001 (March 1995) and other equivalent methods and guidelines approved by 
EPA and/or HUD. 
Elevated blood lead level (EBL)-An absorption of lead that is a confirmed 
concentration of lead in whole blood of 20 g/dl (micrograms of lead per 
deciliter of whole blood) for a single venous test or of 15-19 g/dl in two 
consecutive tests taken three to four months apart. 
ELNS-Environmental Lead Notification Section within the Environmental Lead 
Branch, Toxic Substances Control Division. 
Federal laws and rules-Applicable federal laws and regulations adopted in these 
sections: 
(A)-(C) (No change.) 
Friction surface-An interior or exterior surface that is subject to abrasion or 
friction, including certain window, floor, and stair surfaces.
Impact surface-An interior or exterior surface that is subject to damage by 
repeated impact, for example, certain parts of door frames. 
Inspection-A surface-by-surface investigation by a certified inspector or a 
certified risk assessor to determine the presence of lead-based paint including 
written report explaining the results of the investigation.
Lead Abatement- 
(A) Includes any measure or set of measures designed to permanently eliminate 
lead-based paint hazards. Abatement includes, but is not limited to: 
(i) the removal of lead-based paint and lead-contaminated dust, the permanent 
enclosure or encapsulation of lead-based paint, the removal or replacement of 
lead-painted surfaces or fixtures, and the removal or covering of lead-
contaminated soil; 
(ii) (No change.) 
(iii) abatement projects, which specifically include, but are not limited to: 
(I) projects for which there is a written contract or other documentation, which 
provides that an individual or firm will be conducting activities in or to 
target housing or child-occupied facilities that: 
(-a-) (No change.) 
(-b-) are described in clauses (i) and (ii) of this subparagraph.
(II)-(IV) (No change.) 
(B) Excludes: 
(i) renovation, remodeling, or landscaping activities, which are not designed to 
permanently eliminate lead-based paint hazards, but, instead, are designed to 
repair, restore, or remodel a given structure or dwelling, even though these 
activities may incidently result in a reduction or elimination of lead-based 
paint hazards; 
(ii) (No change.) 
(iii) demolition of target housing buildings and child-occupied facilities. 
Lead-based paint-Paint or other surface coatings that contain lead equal to or 
in excess of 1.0 milligrams per square centimeter or more than 0.5% by weight. 
Lead-based paint activity-Inspection, testing, risk assessment, risk reduction, 
lead abatement project design or planning, abatement, removal or creation of 
lead-based paint hazards. 
Lead-based paint hazard-Any condition that causes exposure to lead from lead-
contaminated dust, lead-contaminated soil, or lead-contaminated paint that is 
deteriorated or present in accessible surfaces, friction surfaces, or impact 
surfaces that would result in adverse human health effects as identified by EPA 
pursuant to the Toxic Substances Control Act (TSCA) sec.403. 
Lead-contaminated dust-Surface dust in target housing or child-occupied 
facilities that contains an area or mass concentration of lead at or in excess 
of levels determined to be hazardous as established by documented methodologies.
Lead-contaminated soil-Bare soil at target housing or child-occupied facilities 
that contains lead at or in excess of levels determined to be hazardous as 
established by documented methodologies. 
Lead-hazard screen-An activity conducted by a certified risk assessor that 
involves limited paint and dust sampling to determine the presence of a lead-
based paint hazard. 
Living area-Areas of a target housing unit or a child-occupied facility used by 
one or more children six years of age or younger, including, but not limited to, 
living rooms, kitchen areas, dens, play rooms, and children's bedrooms. 
Multi-family dwelling-A structure that contains more than one separate 
residential dwelling unit, which is used or occupied, or intended to be used or 
occupied, in whole or in part, as the home or residence of one or more persons. 
Reduction-Any measures designed to reduce or eliminate human exposure to lead-
based paint hazards through methods including, but not limited to, interim 
controls and abatement. 
Risk assessment-An assessment consists of: 
(A) (No change.) 
(B) a written report by the person or the firm conducting the risk assessment, 
explaining the results of the investigation and options for reducing lead-based 
paint hazards. 
Target housing-Any housing constructed prior to 1978, except housing for the 
elderly or persons with disabilities (unless any child who is six years of age 
or younger resides or is expected to reside in such housing) or any zero-bedroom 
dwelling. As defined in this section, target housing includes the terms 
residential dwelling, multi-family dwelling, and unit. 
Testing-The collection of paint samples for lead analysis by an EPA recognized 
laboratrory or the use of an XRF for determining the presence of lead. 
TSCA-Toxic Substances Control Act (15 United States Code sec.2681 et seq) Title 
IV. 
Visual inspection for clearance testing-The visual examination of a residential 
dwelling or a child-occupied facility following an abatement to determine 
whether or not the abatement has been successfully completed, as indicated by 
the absence of visible residue, dust, and debris. 
Visual inspection for risk assessment-The visual examination of a residential 
dwelling or a child-occupied facility to determine the existence of deteriorated 
lead-based paint or other potential sources of lead-based paint hazards. 
Zero-bedroom dwelling-Any residential dwelling in which the living area is not 
separated from the sleeping area. The term includes, but is not limited to, 
efficiencies, studio apartments, dormitory housing, military barracks, and 
rental of individual rooms in residential dwellings. 

sec.295.204. Accreditation of Training Program Providers.
(a) Accreditation requirement. 
(1) A training program provider may seek accreditation from the department to 
offer courses in any of the following disciplines:
(A) lead inspector; 
(B) lead risk assessor; 
(C) lead abatement supervisor; 
(D) lead abatement project designer; and 
(E) lead abatement worker. 
(2) (No change.) 
(3) A training program provider shall not provide, offer, or claim to provide 
department-accredited training courses for certification purposes without first 
receiving accreditation from the department as required under subsection (c) of 
this section. 
(b) Fees. An annual fee for lead training program provider accreditation shall 
be $500. The fee payment must accompany the application. After accreditation the 
fee shall be paid in full each year on or before the day of the month of the 
expiration date given on the certificate. At least 30 days before the 
anniversary date of accreditation or the date an accreditation expires, the 
department, as a service to the accredited trainer, shall send a reminder notice 
to the accredited trainer, by first class mail to the last known address of the 
accredited trainer. Failure of the department to send the reminder notice 
creates no liability to the department and does not relieve the accredited 
trainer from paying the annual accreditation fee. After initial application, a 
fee of $100 shall be paid for each additional course application to amend 
accreditation. 
(c) Application process. The following are procedures a training program 
provider shall follow to receive department accreditation to offer lead-based 
paint activities courses. 
(1) A training program provider seeking accreditation shall submit a written 
application to the department containing the following information:
(A) (No change.) 
(B) a list of courses for which the training provider is applying; and 
(C) a statement signed by the training program manager certifying that the 
training program meets the minimum requirements established in subsection (d) of 
this section. If a training program provider uses EPA-developed model training 
materials, a statement certifying the use of these materials shall be submitted. 
If a training program provider does not use EPA-developed training materials, 
its application for accreditation shall include: 
(i)-(ii) (No change.) 
(2) All training program providers shall include in their application for 
accreditation the following: 
(A)-(C) (No change.) 
(D) a copy of the quality control plan as described in subsection (d)(9) of this 
section; 
(E) a statement certifying that copies of the documented methodologies listed in 
compliance with sec.295.203(a) of this title (relating to Federal Documented 
Methodologies) are on-site and available for review; 
(F) documentation that the training manager and principal instructor(s) meet the 
requirements of subsection (d) of this section; and
(G) a specimen of the training certificate which will be given to students upon 
successful course completion and test passage. 
(3) The department shall approve or disapprove an application for accreditation 
no more than 90 days after receiving a complete application from a training 
program provider. Upon approval, a certificate of accreditation shall be sent to 
the applicant within 30 days. Prior to disapproval, the department may, at its 
discretion, work with training program providers to address inadequacies in the 
application for accreditation. If necessary to determine compliance with this 
subsection the department may also request additional materials retained by the 
training program provider under subsections (c) and (d) of this section. If a 
training program provider's application is disapproved, the program may reapply 
for accreditation at any time by following the procedures in subsections (b) and 
(c) of this section. 
(4) (No change.) 
(d) Minimum requirements for the accreditation of training program providers. 
For a training program provider to obtain and maintain accreditation from the 
department to offer courses in lead-based paint activities, the program shall 
meet the following minimum requirements for each discipline for which the 
program is seeking accreditation. 
(1) The training program provider shall employ a training manager who has: 
(A) at least two years of experience, education, or training in teaching workers 
or adults; or 
(B) (No change.) 
(C) two years of experience in managing an occupational health and safety 
training program specializing in environmental hazards; and 
(D) demonstrated experience, education, or training in the construction industry 
including lead or asbestos abatement, painting, carpentry, renovation, 
remodeling, occupational safety and health, or industrial hygiene.
(2) The training program manager shall designate a qualified principal 
instructor for each course who has: 
(A) (No change.) 
(B) successfully completed at least 16 hours of instruction from a trainer 
utilizing a lead-specific EPA model course curriculum; or at least 16 hours of 
lead-specific training from a department-accredited training provider; and 
(C) (No change.) 
(3) The principal instructor shall be responsible for the organization of the 
course and oversight of the teaching of all course material. The training 
program manager may designate guest instructors as needed to provide instruction 
specific to the lecture, hands-on activities, or work practice components of a 
course. One individual may be employed as both the training manager and 
principal instructor if the individual possesses the qualifications listed in 
paragraphs (1) and (2) of this subsection. 
(4) The following documents shall be recognized by the department as proof that 
training managers and principal instructors meet the relevant education, work 
experience, and/or training requirements specifically listed in paragraphs (1) 
and (2) of this subsection. This documentation must be submitted with the 
accreditation application and shall be retained and verified by the training 
program provider as required by the recordkeeping requirements contained at 
subsection (j) of this section. Those documents include the following: 
(A) official academic transcripts or diploma, as proof of meeting the education 
requirements; 
(B)-(C) (No change.) 
(5) (No change.) 
(6) To become accredited in the following disciplines, the training program 
provider shall provide training courses that meet the following training hour 
requirements: 
(A) The lead inspector course shall last a minimum of 24 training hours, with a 
minimum of eight hours devoted to hands-on training. The curriculum for the 
inspector course is contained in subsection (e)(1) of this section.
(B) The lead risk assessor course shall last a minimum of 16 training hours. The 
curriculum for the risk assessor course is contained in subsection (e)(2) of 
this section, and must include at least four hours of hands-on training 
activities. 
(C) The lead abatement supervisor course shall last a minimum of 32 training 
hours, with a minimum of eight hours devoted to hands-on training activities. 
The curriculum for the supervisor course is contained in subsection (e)(3) of 
this section. 
(D) The lead abatement project designer course shall last a minimum of eight 
training hours. The curriculum for the project designer course is contained in 
subsection (e)(4) of this section. 
(E) (No change.) 
(7) For each course offered, the training program provider shall conduct a 
course test, and if applicable, a hands-on skills assessment at the completion 
of the course. Each individual must successfully complete the hands-on skills 
assessment and receive a passing score of 70% correct or above on the course 
test to pass any course. 
(A)-(C) (No change.) 
(8) Training program providers shall issue unique course completion certificates 
to each individual who passes the training course. The course completion 
certificate shall include: 
(A)-(C) (No change.) 
(D) (D) the name, address, and telephone number of the training program 
provider. 
(9) (No change.) 
(10) Training program providers must offer courses which teach the standards for 
conducting lead-based paint activities contained in sec.295.212 of this title 
(relating to Standards for Conducting Lead-Based Paint Activities), and other 
such standards developed by EPA and HUD. These standards shall be taught in the 
appropriate courses to provide trainees with the knowledge needed to perform the 
lead-based paint activities they are responsible for conducting. 
(11) (No change.) 
(12) The training program manager shall allow the department to audit the 
training program at any reasonable time to verify the contents of the 
application for accreditation as described in subsection (c) of this section and 
to verify that the requirements of subsection (e) of this section are being met. 
(13) (No change.) 
(14) The training program manager shall submit to the department a list of those 
individuals successfully completing a course including the name, social security 
number (optional) or other identifying information, and the date of course 
completion within ten working days of the completion of the course. 
(15) The training program manager shall furnish the department with] a copy of 
all scheduled courses and shall advise the department at least 24 hours in 
advance of any course cancellations or changes. Course schedules shall be 
provided to the department seven calendar days prior to the conduct of any 
course on the schedule. In the event that a training course must be scheduled 
immediately due to an emergency, notification to the department must be made as 
soon as possible, but no less than 48 hours prior to commencement of the course. 
Written justification for not notifying the department seven days in advance 
must be provided with the emergency training request. 
(e) Minimum training curriculum requirements. To become accredited to offer 
lead-based paint activities instruction in the specific disciplines listed in 
paragraphs (1)-(5) of this subsection, training program providers must ensure 
that their courses of study include the following course topics. Requirements 
beginning with an asterisk (*) indicate areas that require hands-on activities 
as an integral component of the course. 
(1) Lead inspector instruction: 
(A) role and responsibilities of the inspector; 
(B) (No change.) 
(C) background information regarding federal, state, and local regulations and 
guidance that pertain to lead-based paint and lead-based paint activities 
including the Texas Environmental Lead Reduction Rules; 
(D) *lead-based paint inspection methods, including selection of rooms and 
components for sampling or testing; 
(E)-(F) (No change.) 
(G) *preparation of the written final inspection report; and
(H) (No change.) 
(2) Lead risk assessor instruction: 
(A)-(C) (No change.) 
(D) *visual inspection for the purposes of identifying potential sources of 
lead-based paint hazards; 
(E)-(F) (No change.) 
(G) *interpretation of lead-based paint and other lead sampling results, 
including all applicable state and federal guidance or regulations pertaining to 
lead-based paint hazards; 
(H) development of hazard control options, the role of interim controls, and 
operations and maintenance activities to reduce lead-based paint hazards; and 
(I) (No change.) 
(3) Lead abatement supervisor instruction: 
(A)-(B) (No change.) 
(C) background information regarding federal, state, and local regulations and 
guidance that pertain to lead-based paint abatement including the Texas 
Environmental Lead Reduction Rules; 
(D)-(H) (No change.) 
(I) development and implementation of an occupant protection plan and abatement 
report; 
(J) *lead-based paint hazard recognition and control; 
(K) *lead-based paint abatement and lead-based paint hazard reduction methods, 
including restricted practices; 
(L) *interior dust abatement/cleanup or lead-based paint hazard control and 
reduction methods; 
(M) *soil and exterior dust abatement or lead-based paint hazard control and 
reduction methods; 
(N)-(P) (No change.) 
(4) Lead abatement project designer instruction:
(A) role and responsibilities of the project designer; 
(B) contract specifications and cost estimation for abatement projects; 
(C) development and implementation of an occupant protection plan for abatement 
projects; 
(D) lead-based paint abatement and lead hazard reduction methods, including 
restricted practices for abatement projects; 
(E) interior dust abatement/cleanup or lead hazard control and reduction methods 
for abatement projects; 
(F) clearance standards and testing for abatement projects; and 
(G) integration of lead-based paint abatement methods with modernization and 
rehabilitation projects for abatement projects. 
(5) Lead abatement worker instruction: 
(A) role and responsibilities of the lead abatement worker;
(B) background information regarding lead and its adverse health effects; 
(C) background information regarding federal, state, and local regulations and 
guidance that pertain to lead-based paint abatement including the Texas 
Environmental Lead Reduction Rules; 
(D) *lead-based paint hazard recognition and control; 
(E) *lead-based paint abatement and lead-based paint hazard reduction methods, 
including restricted practices; 
(F) *interior dust abatement methods/cleanup or lead-based paint hazard 
reduction; and 
(G) *soil and exterior dust abatement methods or lead-based paint hazard 
reduction. 
(f) Minimum requirements for the accreditation of refresher training program 
providers. A training program provider may apply for accreditation to teach as 
many different refresher training courses as it chooses. To teach an accredited 
refresher course, a training program provider must be accredited, or 
concurrently applying for accreditation, to provide instruction in the 
corresponding full course (e.g., lead-based paint inspector, abatement 
supervisor). To obtain department accreditation to offer refresher training, a 
training program provider must meet the following minimum requirements. 
(1) Each refresher course shall review the curriculum topics of the full-length 
courses listed under subsection (e) of this section, as appropriate. In 
addition, to become accredited to offer refresher training courses, training 
programs shall ensure that their courses of study include, at a minimum, the 
following: 
(A) an overview of current safety practices relating to lead-based paint 
activities in general as well as discipline-specific information; 
(B) current laws and regulations relating to lead-based paint activities in 
general as well as discipline-specific information; and 
(C) current technologies relating to lead-based paint activities in general as 
well as discipline-specific information. 
(2) Each refresher course, except for the project designer course, shall include 
a minimum of eight training hours. The project designer refresher shall include 
a minimum of four training hours. A hands-on assessment, if applicable, must 
also be conducted in this period. 
(3) (No change.) 
(4) A training program provider seeking refresher course accreditation shall 
submit to the department a written application containing the following: 
(A)-(B) (No change.) 
(C) a copy of the table of contents and course-identifying cover sheet of the 
student and instructor manuals for each course; 
(D) a statement signed by the training program manager certifying that the 
program complies at all times with all requirements of subsection (f) of this 
section; and 
(E) the course test blueprint for each refresher course. 
(5) (No change.) 
(6) If an application for refresher training accreditation is received apart 
from an application for accreditation as described in subsection (c) of this 
section, the department shall approve or disapprove a request for refresher 
training accreditation within 90 days of receiving a complete application. Upon 
approval, a certificate of refresher training accreditation shall be sent to the 
applicant within 30 days. In the case of disapproval, a letter describing the 
reasons for disapproval shall be sent to the applicant. The department may, at 
its discretion, work with training program providers to address inadequacies in 
the application for refresher accreditation. If a training program provider's 
application is disapproved, the training program provider may reapply at any 
time after the reason for disapproval has been corrected. 
(g) Re-accreditation of training programs. 
(1)-(2) (No change.) 
(3) The training program provider's application for re-accreditation shall 
contain: 
(A)-(C) (No change.) 
(D) a certified statement signed by the program manager stating:
(i) the training program provider will at all times comply with all requirements 
in subsections (d) and (f) of this section; and 
(ii) (No change.) 
(4) The department may audit the training program provider at any reasonable 
time to verify the contents of the application for re-accreditation as described 
in paragraph (3) of this subsection. 
(h) Suspension, deaccreditation, and modification of accredited training 
programs. 
(1) The department may, after notice and an opportunity for hearing, suspend, 
deaccredit, or modify a training program provider's accreditation if a training 
program, training manager, or other person with supervisory authority over the 
training program has: 
(A)-(E) (No change.) 
(F) failed to comply with federal, state, or local lead-based paint statutes or 
regulations; 
(G) made false or misleading statements to the department in its application for 
accreditation or re-accreditation which the department relied upon in approving 
the application; or 
(H) failed to pay the annual fee. 
(2) (No change.) 
(i) Procedures for suspension, deaccreditation or modification of training 
program accreditation. 
(1) When the department decides to suspend, deaccredit, or modify the 
accreditation of a training program, it shall notify the affected entity in 
writing of the following: 
(A) the assertion of laws and facts upon which the suspension, deaccreditation, 
or modification is based; 
(B) the commencement date and duration of the suspension, deaccreditation, or 
modification; 
(C) actions, if any, which the affected entity may take to avoid suspension, 
deaccreditation, or modification, or to receive accreditation in the future; 
(D) the opportunity and method for requesting a hearing prior to final 
departmental action to deaccredit, suspend, or modify accreditation; and 
(E) (No change.) 
(2) (No change.) 
(j) Training program recordkeeping requirements. 
(1) Accredited training program providers shall maintain and make available to 
the department, upon request, the following records: 
(A)-(G) (No change.) 
(2)-(3) (No change.) 

sec.295.205. Certification: Applications, Denials, and Renewals. 
(a) General requirements. Applications for certification or renewal under these 
sections must be made on forms provided by the Texas Department of Health 
(department), shall be signed by the applicant, and must be accompanied by a 
cashier's check or money order, made payable to the Texas Department of Health, 
for the amount of the certification or certification renewal fee. Only 
applications which are complete shall be considered by the department; the 
burden of proof of meeting all requirements for certification rests with the 
applicant. For specific requirements for the various certification disciplines, 
refer to the sections applicable to that discipline relating to certification 
requirements. 
(b) Inquiries. Potential applicants who wish to discuss or obtain information 
concerning qualification requirements may do so by calling the department's 
Environmental Lead Branch at (512) 834-6612 or (888) 778-9440 (toll-free in 
Texas).
(c) Denials. The department may deny an application for certification or renewal 
if the applicant fails to meet the standards established by these sections 
(applicants may not reapply for the time periods specified), including, but not 
limited to: 
(1)-(4) (No change.) 
(5) failure to submit the required fee with an application for certification or 
when renewing a certification-90 days; 
(6)-(12) (No change.) 
(13) failure to prevent lead contamination of areas adjacent to the abatement 
area-three years; 
(14) failure to pass the state certification examination with a score of at 
least 70% correct after three attempts; or 
(15) engaging in cheating practices on any state certification examination-three 
years. 
(d) (No change.) 
(e) Appeal of certification denial. A denial of an application or a request for 
renewal may be appealed by the applicant. The details for requesting a hearing 
will be included in each letter of denial. 
(f) Processing applications and renewals. 
(1) Time periods. Applications for certification or renewal will be processed 
within 60 days of receipt by issuing a certification or by providing a written 
notice to the applicant outlining the reasons why the application is deficient. 
In cases of a deficient application, the certification will be issued within 60 
days of the applicant meeting all the certification requirements including 
receipt of all acceptable documents at the department.
(2) Reimbursement of fees. Initial application or renewal fees will be refunded 
only when the department does not process a completed application in the time 
period specified, or an applicant is not able to meet the certification 
requirements. If fee amounts are in excess of the correct fee amount, the excess 
payment will be reimbursed. Reimbursement of fees paid by applicants not meeting 
the certification requirements will be made, less a $25 administrative fee. A 
reimbursement request must be made to the department in writing within 90 days 
of notification that the applicant does not meet certification requirements. 
Otherwise, fees for applications and renewals are not eligible for refund, or 
credit. 
(3) Denial of an application due to abandonment of the application does not 
constitute grounds for reimbursement. Abandonment is defined as failure to 
respond to a written request of the department by the applicant for a period of 
90 days. 
(4) Appeal of reimbursement denial. If the request for reimbursement authorized 
by this subsection is denied, the applicant may then appeal to the commissioner 
of health for a resolution of the dispute. The applicant shall give written 
notice to the commissioner by writing to the chief, Environmental Lead Branch, 
the designated representative of the commissioner, requesting reimbursement of 
all filing fees paid because his/her application was not processed within the 
prescribed time period. The branch chief shall submit a written report of the 
facts related to the processing of the application and good cause for exceeding 
the established time periods. The commissioner will determine the final action 
and provide written notification of his/her decision to the applicant and the 
branch chief. 
(5) Contested case hearing. If at any time during the processing of the 
application, a contested case proceeding arises, the time periods in the 
department's formal hearing procedures, sec.1.34 of this title (relating to Time 
Periods for Conducting Contested Case Hearings), are applicable. 
(g) Reminder notices. At least 30 days before the anniversary date of 
certification or the date a certificate expires, the department, as a service to 
the certified person, shall send a reminder notice to the certified person, by 
first-class mail to the last known address of the certified person. It is the 
responsibility of the certified person to keep the department informed of their 
current address, or change of address for all certification categories, and to 
take action to keep their certification current or renew their certificate 
whether or not they have received the notification from the department. Failure 
by the department to send the timely notice creates no liability to the 
department and does not relieve the applicant of the obligation to file a timely 
renewal application. The reminder notice will state: 
(1) the type of certification requiring payment of the annual fee or renewal 
fee; 
(2) the time period allowed for payment of the annual fee or renewal fee; and 
(3) the amount of the annual or renewal fee. 
(h) Renewal requirements. Before the certification expires, the certification 
may be renewed for an additional three-year term provided that the person: 
(1) is qualified to be certified; 
(2) pays to the department the proper renewal fee; 
(3) submits to the department a renewal application on the prescribed form along 
with all required documentation; 
(4) completes successfully the requirements for renewal and examination, if 
required; 
(5) has complied with all final orders resulting from any violations of these 
sections; and 
(6) submits a copy of the refresher training course certificates, if required. 
(i) Prohibition. Practicing with a lapsed certificate is prohibited, regardless 
of when the renewal application is received. Also, certificates which have 
lapsed for a period exceeding 180 days beyond the three-year expiration date 
cannot otherwise be renewed. A new application subject to current qualifications 
is required. 
(j) Replacements. A certified person or firm may obtain a replacement 
certificate and/or identification (ID) card by submitting such request in 
writing on a department-issued form along with the reissuance fee of $20 for 
each official document requested. 
(k) Retention of control. The department may, at any time after the filing of 
any application and before the expiration of any certification, require: 
(1) additional written information and assurances; and 
(2) cooperation with any inspections initiated by the department, or the 
production of any documentary or other evidence that the department considers 
necessary to determine whether the certification should be granted, delayed, 
denied, modified, suspended or revoked. 

sec.295.206. Lead Inspector: Certification Requirements.
(a) Certification requirements. A person must be certified by the department as 
a lead inspector to engage in lead inspection of target housing and child-
occupied facilities. Such certification is valid for a period of three years 
from the date the certification application is approved by the department. 
(b) Specific requirements. 
(1) Applicants for certification as lead inspectors are required to: 
(A) successfully complete a lead inspector training course and receive a course 
completion certificate from a department-accredited training program provider; 
and 
(B) pass the state certification examination for lead inspectors.
(2) Individuals who have made application for certification to the department 
prior to June 1, 1998, and are subsequently granted certification by the 
department, and who maintain continuous certification from that date, are not 
subject to the examination requirement of paragraph (1)(B) of this subsection. 
(c) State certification examination. 
(1) In order to take the certification examination for lead inspectors, an 
individual must first successfully complete a lead inspector course and receive 
a course completion certificate from a department-accredited training provider. 
(2) The individual shall then register for the examination on a department-
issued form prior to the examination date. 
(3) A score of at least 70% correct must be achieved to pass the examination. 
(4) An individual may take the certification examination no more than three 
times within six months of receiving a course completion certificate. 
(5) If an individual does not pass the certification examination within six 
months of receiving a course completion certificate, the individual must retake 
the lead inspector course from a department-accredited training provider and 
receive a course completion certificate prior to retaking the certification 
examination. 
(6) An examination fee of $50 for the initial examination and a fee of $50 for 
each re-examination shall be submitted to the department with the department-
issued examination registration form. The required fee must be in the form of a 
cashier's check or money order made payable to the Texas Department of Health. 
The required fee may not be paid at the examination site, but must be received 
by the department with the examination registration form prior to the 
examination date. 
(d) Any individual can fulfill the requirements of subsection (b)(1)(A) of this 
section by showing proof of the successful completion, between October 1, 1990, 
and August 31, 1996, of a lead inspector training course which utilized the 
Environmental Protection Agency (EPA) model course curriculum. Individuals shall 
have until June 1, 1998, to make application based upon this grandfathering 
provision. After that date, all individuals seeking certification shall complete 
the required course and receive a course completion certificate from a 
department-accredited training provider. 
(e) Responsibilities. The responsibilities of the certified lead inspector 
include the following: 
(1) conduct post-abatement soil and dust clearance testing following procedures 
in sec.295.212 of this title (relating to Standards for Conducting Lead-Based 
Paint Activities); 
(2) conduct lead-based paint inspections of target housing and child-occupied 
facilities that measure the concentration of lead in paint on a surface-by-
surface basis; and 
(3) complete a written inspection report. 
(f) Application for certification renewal. To become re-certified, the inspector 
must successfully complete an inspector refresher training course from a 
department-accredited training program provider no sooner than 180 days prior to 
the inspector's certification expiration date and follow the procedures 
contained in sec.295.205 of this title (relating to Certification: Applications, 
Denials, and Renewals). 
(g) Fees. The annual fee for lead inspector certification shall be $150. The fee 
must accompany the certification or renewal application the first year, and 
accompany the annual fee payment coupon issued by the department for years two 
and three. In order to retain certification, all annual fees must be paid as 
required. 

sec.295.207. Lead Risk Assessor: Certification Requirements.
(a) Certification requirements. A person must be certified by the department as 
a lead risk assessor to engage in lead risk assessment or lead hazard screens of 
target housing and child-occupied facilities. Such certification is valid for a 
period of three years from the date the certification application is approved. 
(b) Specific requirements. 
(1) Applicants for certification as lead risk assessors are required to: 
(A) successfully complete a lead inspector and a lead risk assessor training 
course, and receive course completion certificates from a department-accredited 
training program provider; 
(B) pass the state certification examination for lead risk assessors; and 
(C) meet or exceed the following additional experience and/or education 
requirements: 
(i) a bachelor's degree and one year of experience in a related field (e.g. 
lead, asbestos, public health, environmental remediation work, or building 
construction trades); or 
(ii) an associate's degree and two years of experience in a related field (e.g. 
lead, asbestos, public health, environmental remediation work, or building 
construction trades); or 
(iii) a high school diploma (or equivalent), plus at least three years of 
experience in a related field (e.g. lead, asbestos, public health, environmental 
remediation work, or building construction trades); or 
(iv) certification as an industrial hygienist, a professional engineer, a public 
health nurse, a professional registered sanitarian, a certified safety 
professional, a registered architect, or an environmental scientist.
(2) Individuals who have made application for certification to the department 
prior to June 1, 1998, and are subsequently granted certification by the 
department, and who maintain continuous certification from that date, are not 
subject to the examination requirement of paragraph (1)(B) of this subsection. 
(c) State certification examination. 
(1) In order to take the certification examination for risk assessors, an 
individual must first successfully complete lead inspector and lead risk 
assessor courses and receive course completion certificates from a department-
accredited training provider. 
(2) The individual shall then register for the examination on a department-
issued form prior to the examination date. 
(3) A score of at least 70% correct must be achieved to pass the examination. 
(4) An individual may take the certification examination no more than three 
times within six months of receiving a course completion certificate. 
(5) If an individual does not pass the certification examination within six 
months of receiving course completion certificates, the individual must retake 
lead inspector and lead risk assessor courses from a department-accredited 
training provider and receive course completion certificates prior to retaking 
the certification examination. 
(6) An examination fee of $50 for the initial examination and a fee of $50 for 
each re-examination shall be submitted to the department with the department-
issued registration form. The required fee shall be received by the department 
in the form of a cashier's check or money order made payable to the Texas 
Department of Health. The required fee may not be paid at the examination site, 
but must be received by the department with the examination registration form 
prior to the examination date. 
(d) Any individual can fulfill the requirements of subsection (b)(1)(A) of this 
section by showing proof of the successful completion, between October 1, 1990, 
and August 31, 1996, of a lead inspector training course and a lead risk 
assessor training course which utilized the Environmental Protection Agency 
(EPA) model course curriculum. Individuals shall have until June 1, 1998, to 
make application based upon this grandfathering provision. After that date, all 
individuals seeking certification shall complete the required courses and 
receive course completion certificates from a department-accredited training 
provider. 
(e) Responsibilities. The responsibilities of the certified lead risk assessor 
include the following: 
(1) conduct a risk assessment and other lead hazard assessment activities (such 
as screening a residence for lead hazard) in target housing and child-occupied 
facilities; 
(2) complete a written risk assessment report; 
(3) interpret the results of assessments; 
(4) identify hazard control strategies to reduce or eliminate lead exposures; 
(5) conduct post-abatement soil and dust clearance sampling and evaluate the 
results; and 
(6) perform the same duties of a certified lead inspector as specified in 
sec.295.206(e) of this title (relating to Lead Inspector: Certification 
Requirements). 
(f) Application for certification renewal. To become re-certified, the risk 
assessor must successfully complete lead inspector and lead risk assessor 
refresher training courses from a department-accredited training program 
provider no sooner than 180 days prior to the risk assessor's certification 
expiration date and follow the procedures contained in sec.295.205 of this title 
(relating to Certification: Applications, Denials and Renewals). 
(g) Fees. The annual fee for lead risk assessor certification shall be $300. The 
fee must accompany the certification or renewal application the first year, and 
accompany the annual fee payment coupon issued by the department for years two 
and three. In order to retain certification, all annual fees must be paid as 
required. 

sec.295.208. Lead Abatement Supervisor: Certification Requirements. 
(a) Certification requirements. A person must be certified by the department as 
a lead abatement supervisor to engage in such activity in target housing and 
child-occupied facilities. Such certification shall be valid for a period of 
three years from the date the certification application is approved by the 
department. 
(b) Specific requirements. 
(1) Applicants for certification as lead abatement supervisors are required to:
(A) successfully complete a lead abatement supervisor training course and 
receive a course completion certificate from a department-accredited training 
program provider; 
(B) pass the state certification examination for lead abatement supervisors; and 
(C) meet or exceed the following additional experience and/or education 
requirements: 
(i) one year of experience as a certified lead abatement worker; or 
(ii) at least two years experience in a related field (e.g. lead, asbestos or 
environmental remediation work), or in the building construction trades. 
(2) Individuals who have made application for certification to the department 
prior to June 1, 1998, and are subsequently granted certification by the 
department, and who maintain continuous certification from that date, are not 
subject to the examination requirement of paragraph (1)(B) of this subsection. 
(c) State certification examination. 
(1) In order to take the certification examination for lead abatement 
supervisors, an individual must first successfully complete a lead abatement 
supervisor course and receive a course completion certificate from a department-
accredited training provider. 
(2) The individual shall then register for the examination on a department-
issued form prior to the examination date. 
(3) A score of at least 70% correct must be achieved to pass the examination. 
(4) An individual may take the certification examination no more than three 
times within six months of receiving a course completion certificate. 
(5) If an individual does not pass the certification examination within six 
months of receiving a course completion certificate, the individual must retake 
the lead abatement supervisor course from a department-accredited training 
provider and receive a course completion certificate prior to taking the 
certification examination. 
(6) An examination fee of $50 for the initial examination and a fee of $50 for 
each re-examination shall be submitted to the department with the department-
issued registration form. The required fee shall be received by the department 
in the form of a cashier's check or money order made payable to the Texas 
Department of Health. The required fee may not be paid at the examination site, 
but must be received by the department with the examination registration form 
prior to the examination date. 
(d) Any individual can fulfill the requirements of subsection (b)(1)(A) of this 
section by showing proof of the successful completion, between October 1, 1990, 
and August 31, 1996, of a lead abatement supervisor training course which 
utilized the Environmental Protection Agency (EPA) model course curriculum. 
Individuals shall have until June 1, 1998, to make application based upon this 
grandfathering provision. After that date, all individuals seeking certification 
shall complete the required course and receive a course completion certificate 
from a department-accredited training provider. 
(e) Responsibilities. The responsibilities of the certified lead abatement 
supervisor include the following: 
(1) identify the most appropriate course(s) of action to eliminate identified 
lead hazards; 
(2) ensure that all abatement activities in target housing and child-occupied 
facilities are completed according to the standards outlined in sec.295.212 of 
this title (relating to Standards for Conducting Lead-Based Paint Activities); 
(3) supply personal protection equipment to employees, train employees who 
perform lead-related activities in the use of equipment, and supervise their 
compliance; 
(4) ensure that abatement activities are conducted in accordance with regulatory 
requirements; 
(5) prepare a written abatement report; 
(6) develop an occupant protection plan; 
(7) be available at all times as described in sec.295.212(d)(2) when abatement 
activities are being conducted; 
(8) ensure completion of all abatement activities according to these sections; 
(9) assume the duties of lead abatement workers or perform activities affecting 
lead materials; 
(10) cooperate with department personnel in the discharge of their official 
duties to conduct inspections and investigations, as described in sec.295.218 of 
this title (relating to Compliance: Inspection and Investigations); and 
(11) maintain standards of operation, including Environmental Protection Agency 
(EPA) and Occupational Safety and Health Administration of the United States 
Department of Labor (OSHA) regulations. 
(f) Application for certification renewal. To become re-certified, the lead 
abatement supervisor must successfully complete a lead abatement supervisor 
refresher training course from a department-accredited training provider no 
sooner than 180 days prior to the supervisor's certification expiration date and 
follow the procedures contained in sec.295.205 of this title (relating to 
Certification: Applications, Denials and Renewals). 
(g) Fees. The annual fee for lead abatement supervisor certification shall be 
$150. The fee must accompany the certification or renewal application the first 
year, and accompany the annual fee payment coupon issued by the department for 
years two and three. In order to retain certification, all annual fees must be 
paid as required. 

sec.295.209. Lead Abatement Project Designer: Certification Requirements. 
(a) Certification requirements. A person must be certified by the department as 
a lead abatement project designer to engage in such activity in target housing 
and child-occupied facilities. Such certification shall be valid for a period of 
three years from the date the certificate application is approved by the 
department. 
(b) Specific requirements. 
(1) Applicants for certification as a lead abatement project designer are 
required to: 
(A) successfully complete a lead abatement supervisor training course and 
receive a course completion certificate from a department-accredited training 
program provider; 
(B) successfully complete a lead abatement project designer training course and 
receive a course completion certificate from a department-accredited training 
program provider; and 
(C) meet or exceed the following additional experience and/or education 
requirements: 
(i) a bachelor's degree in engineering, architecture, or a related profession, 
and one year of experience in building construction and design or a related 
field; or 
(ii) four years of experience in building construction and design or a related 
field. 
(2) Any individual can fulfill the requirements of paragraph (1)(A) and (B) of 
this subsection by showing proof of the successful completion, between October 
1, 1990, and August 31, 1996, of lead abatement supervisor and lead abatement 
project designer training courses which utilized the Environmental Protection 
Agency (EPA) model course curriculum. Individuals shall have until June 1, 1998, 
to make application based upon this grandfathering provision. After that date, 
all individuals seeking certification shall complete the required courses and 
receive course completion certificates from a department-accredited training 
provider. 
(c) Responsibilities. The responsibilities of the certified lead abatement 
project designer are to: 
(1) comply with standards of operation, including EPA and OSHA regulations; 
(2) prepare a written abatement project design(s); 
(3) develop a written occupant protection plan; 
(4) prepare a written abatement report; and 
(5) cooperate with department personnel in the discharge of their official 
duties to conduct inspections and investigations, as described in sec.295.218 of 
this title (relating to Compliance: Inspections and Investigations).
(d) Application for certification renewal. To become re-certified, the lead 
abatement project designer must successfully complete lead abatement supervisor 
and lead abatement project designer refresher training courses from a 
department-accredited training provider no sooner than 180 days prior to the 
project designer's certification expiration dates and follow the procedures 
contained in sec.295.205 of this title (relating to Certification: Applications, 
Denials and Renewals). 
(e) Fees. The annual fee for lead abatement project designer certification shall 
be $300. The fee must accompany the certification or renewal application the 
first year, and accompany the annual fee payment coupon issued by the department 
for years two and three. In order to retain certification, all annual fees must 
be paid as required. 

sec.295.210. Lead Abatement Worker: Certification Requirements.
(a) Certification requirements. A person must be certified by the department as 
a lead abatement worker to engage in such activity in target housing and child-
occupied facilities. Such certification shall be valid for a period of three 
years from the date the certification application is approved by the department. 
(b) Specific requirements. 
(1) Applicants for certification as lead abatement workers are required to 
successfully complete a lead abatement worker training course and receive a 
course completion certificate from a department-accredited training program 
provider. 
(2) Any individual can fulfill the requirements of subsection (b)(1) of this 
section by showing proof of the successful completion, between October 1, 1990, 
and August 31, 1996, of a lead abatement worker training course which utilized 
the Environmental Protection Agency (EPA) model course curriculum. Individuals 
shall have until June 1, 1998, to make application based upon this 
grandfathering provision. After that date, all individuals seeking certification 
shall complete the required course and receive a course completion certificate 
from a department-accredited training provider. 
(c) Application for certification renewal. To become re-certified, the lead 
abatement worker must successfully complete a lead abatement worker refresher 
training course from a department-accredited training provider no sooner than 
180 days prior to the worker's certification expiration date and follow the 
procedures contained in sec.295.205 of this title (relating to Certification: 
Applications, Denials and Renewals).
(d) Fees. The annual fee for lead abatement worker certification shall be $50. 
The fee must accompany the certification or renewal application the first year, 
and accompany the annual fee payment coupon issued by the department for years 
two and three. In order to retain certification, all annual fees must be paid as 
required. 

sec.295.212. Standards for Conducting Lead-based Paint Activities. 
(a) Inspection. 
(1) Lead-based paint inspections shall be conducted only by persons certified by 
the department as an inspector or risk assessor and must be conducted according 
to the procedures in this section. 
(2) When conducting an inspection, the following locations shall be selected 
according to documented methodologies and tested for the presence of lead-based 
paint. 
(A) For every residential dwelling and child-occupied facility, each interior 
component with a distinct painting history, and each exterior component with a 
distinct painting history shall be tested for lead-based paint, except those 
components that the inspector or risk assessor determines to have been replaced 
after 1978, or to not contain lead-based paint. 
(B) If conducting an inspection in a multi-family dwelling or child-occupied 
facility, all components with a distinct painting history in every common area 
shall be tested for lead-based paint, except those components that the inspector 
or risk assessor determines to have been replaced after 1978, or to not contain 
lead-based paint. 
(3) (No change.) 
(4) The certified inspector or risk assessor shall prepare an inspection report 
which shall include the following information: 
(A)-(H) (No change.) 
(I) each testing method and device and/or sampling procedure employed for paint 
analysis, including quality control data and, if used, the brand name, model, 
and serial number of any XRF device; 
(J)-(K) (No change.) 
(b) Lead hazard screen. 
(1) A lead hazard screen shall be conducted only by persons certified by the 
department as risk assessors. 
(2) A lead hazard screen shall be conducted as follows.
(A) Collect background information regarding the physical characteristics of the 
residential dwelling or child-occupied facility and occupant use patterns that 
may cause lead-based paint exposure to one or more children six years of age or 
younger. 
(B) A visual inspection of the residential dwelling or child-occupied facility 
and common area shall be conducted to: 
(i) determine if any deteriorated paint is present; and 
(ii) locate at least two dust sampling locations; 
(C) If deteriorated paint is present, each surface with deteriorated paint and 
having a distinct painting history shall be tested, using documented 
methodologies, for the presence of lead-based paint. 
(D) In residential dwellings, two composite dust samples shall be collected, one 
from the floors and the other from the windows, in rooms, hallways, or 
stairwells where one or more children, age six or younger, are most likely to 
come in contact with dust. 
(E) In multi-family dwellings and child-occupied facilities, in addition to the 
floor and window samples required in subparagraph (D) of this paragraph, the 
risk assessor shall also collect composite dust samples from any common areas 
where one or more children six years of age or younger are likely to come into 
contact with dust. 
(3)-(4) (No change.) 
(5) The risk assessor shall prepare a lead hazard screen report, which shall 
include the following: 
(A) the information required in a risk assessment report as specified in 
subsection (c) of this section, excluding paragraph (9)(P)-(R); and 
(B) (No change.) 
(c) Risk assessment. 
(1) A lead risk assessment shall be conducted only by persons certified by the 
department as risk assessors and must be conducted according to the procedures 
in this subsection. 
(2) A visual inspection for risk assessment of the residential dwelling or 
child-occupied facility shall be undertaken to locate the existence of 
deteriorated paint, assess the extent and causes of the deterioration, and other 
potential sources of lead-based paint hazards. If deteriorated paint or other 
potential sources of lead-based paint hazards are present, each surface with 
deteriorated paint or each painted surface which is a potential lead-based paint 
hazard shall be tested using documented methodologies for the presence of lead. 
(3) Background information shall be collected regarding the physical 
characteristics of the residential dwelling or child-occupied facility and 
occupant use patterns that may result in lead-based paint exposure to one or 
more children six years of age or younger. 
(4) In residential dwellings, dust samples (composite or single-surface samples) 
from the window and floor shall be collected in all living areas where one or 
more children six years of age or younger are most likely to come into contact 
with dust. 
(5) For multi-family dwellings and child-occupied facilities, dust samples 
(composite or single-surface samples) from the window and floor shall be 
collected in all living areas where one or more children six years of age or 
younger are most likely to come into contact with dust. In addition, window and 
floor dust samples (composite or single-surface samples) shall be collected in 
the following locations: 
(A) (No change.) 
(B) other common areas in the building where the risk assessor determines that 
one or more children six years of age or younger are likely to come into contact 
with dust. 
(6) (No change.) 
(7) Any paint, dust, or soil sampling or testing shall be conducted using 
documented methodologies that incorporate adequate quality control procedures. 
(8) (No change.) 
(9) The certified risk assessor shall prepare a risk assessment report which 
shall include the following information: 
(A) (No change.) 
(B) physical address of building; 
(C) date of construction of building; 
(D) (No change.) 
(E) name, address, and telephone number of the owner of each building or unit; 
(F)-(K) (No change.) 
(L) all data collected from on-site testing including quality control data and, 
if used, the brand name, model, and serial number of any XRF device; 
(M)-(Q) (No change.) 
(R) a description of recommended interim controls and/or abatement options for 
each identified lead-based paint hazard, and a suggested prioritization for 
taking each action based on the immediacy and severity of the hazard. If the use 
of an encapsulant or enclosure is recommended, the report shall include a 
maintenance and monitoring schedule for the encapsulant or enclosure.
(d) Abatement. 
(1) A lead abatement shall be conducted only by an individual certified by the 
department as a worker or supervisor, and if conducted, shall be conducted 
according to the procedures in this subsection. 
(2) (No change.) 
(3) The certified supervisor and the certified firm employing that supervisor 
shall ensure that all abatement activities are conducted according to the 
requirements of this subsection and all other federal, state, and local 
requirements. 
(4) Notification of the commencement of lead-based paint abatement activities in 
target housing or child-occupied facilities or as a result of a federal, state, 
or local order shall be given to the department, according to the procedures 
established in sec.295.214 of this title (relating to Notifications), prior to 
the commencement of abatement activities. 
(5) A written occupant protection plan shall be developed and implemented for 
all abatement projects and shall be prepared according to the following 
procedures. 
(A) The occupant protection plan shall be unique to each residential dwelling or 
child-occupied facility and be developed prior to the abatement. The occupant 
protection plan shall describe the measures and management procedures that will 
be taken during the abatement to protect the building occupants from exposure to 
any lead-based paint hazards. 
(B) A certified supervisor or project designer shall prepare the occupant 
protection plan. 
(C) The occupant protection plan must be at the worksite at all times during any 
abatement activity. 
(6) The following work practices shall be followed during a lead abatement. 
(A)-(B) (No change.) 
(C) Dry scraping of lead-based paint is permitted only in conjunction with heat 
guns or around electrical outlets or when treating defective paint spots 
totaling no more than two square feet in any one room, hallway, or stairwell or 
totaling no more than 20 square feet on exterior surfaces.
(D) (No change.) 
(7) (No change.) 
(8) The following post-abatement clearance procedures shall be performed by a 
certified inspector or risk assessor. 
(A) Following an abatement, a visual inspection shall be performed to determine 
if deteriorated painted surfaces and/or visible amounts of dust, debris, or 
residue are still present. If deteriorated painted surfaces or visible amounts 
of dust, debris, or residue are present, these conditions must be eliminated 
prior to the continuation of the clearance procedures.
(B)-(D) (No change.) 
(E) The following locations shall be sampled for lead-contaminated dust based 
upon the extent of abatement activities conducted in or on the target housing or 
child-occupied facility. 
(i) After conducting an abatement with containment, a sample shall be taken from 
a window (if available) and the floor of each room, as well as from a window (if 
available) and from the floor of each common area within the containment area. 
In addition, a sample shall be taken from the floor outside the containment 
area. 
(ii) After conducting an abatement with no containment, two dust samples shall 
be taken from no less than four rooms and any adjacent hallways or stairwells in 
the residential dwelling or child-occupied facility. One dust sample shall be 
taken from a window (if available) and the floor of each room. If there are less 
than four rooms, then all rooms, including all adjacent hallways or stairwells, 
shall be sampled. In addition, a dust sample shall be taken from a window (if 
available) and the floor of each common area. 
(iii) Following an exterior paint abatement, a visual inspection shall be 
conducted to determine and ensure that all horizontal surfaces in the outdoor 
living area closest to the abated surface shall be cleaned of visible dust and 
debris. In addition, a visual inspection shall be conducted to determine the 
presence of paint chips in bare soil in common areas, on the dripline or next to 
the foundation below any abated exterior surface. If paint chips are present, 
they must be removed from the site and properly disposed, according to all 
applicable federal, state, and local requirements.
(F) The certified inspector or risk assessor shall compare the residual lead 
dust level (as determined by the laboratory analysis) from each dust sample with 
applicable clearance levels for lead in dust on floors and windows. If the 
residual dust levels in a sample exceed the clearance levels, all the components 
represented by the failed sample shall be recleaned and retested until clearance 
levels are met. 
(9) (No change.) 
(10) All lead-based paint waste materials from the abatement project must be 
disposed of in accordance with applicable federal, state, and local 
requirements. 
(11) A written abatement report shall be prepared by a certified supervisor or 
project designer as required in this section. The abatement report shall include 
the following information: 
(A)-(D) (No change.) 
(E) the results of clearance testing and all soil analyses (if applicable) and 
the name of each recognized laboratory that conducted the analyses; 
(F) a detailed written description of the abatement, including abatement methods 
used, locations of rooms and/or components where abatement occurred, reason for 
selecting particular abatement methods for each component, and any suggested 
monitoring of encapsulants or enclosures; and 
(G) the name, address, and telephone number of the waste disposal site. 
(12) Clearance levels that are appropriate for the purposes of this section are: 
[sup] 2; 
[sup] 2; 
(C) dust wipes on window troughs (wells): 800 &micro;g/ft<sup>2; and 
(D) dust wipes from exterior surfaces: 800 &micro;g/ft<sup>2. 
(e) Collection and laboratory analysis of samples. Any paint chip, dust, or soil 
samples collected pursuant to the standards contained in this section shall be: 
(1) collected by persons certified by the department as a lead inspector or risk 
assessor; and 
(2) (No change.) 
(f) (No change.) 
(g) Recordkeeping. All reports or plans required in this section shall be 
maintained by the certified firm or individual contractor, who prepared the 
report, for no less than three years. The certified firm or individual 
contractor also shall provide copies of these reports to the building owner who 
contracted for its services. Building owners are subject to the requirements 
mandated under sec.1018 of the Residential Lead-Based Paint Hazard Reduction Act 
of 1992 and 40 Code of Federal Regulations, sec.745, Subpart F, "Disclosure of 
Known Lead-based Paint and/or Lead-based Paint Hazards Upon Sale or Lease of 
Residential Property." 

sec.295.214. Notifications. 
(a) Notification Requirement. The Texas Department of Health's (department) 
Environmental Lead Notification Section (ELNS) and the appropriate department 
regional office shall be notified by the certified lead firm in writing on a 
form specified by the department of any lead-based paint abatement activity in 
target housing (each individual and separate residential dwelling or each 
building within a multifamily dwelling complex) or child-occupied facilities. 
The department notification form must be filled out completely and properly. 
Blanks which do not apply shall be marked "N/A." The designation of "N/A" will 
not be accepted for references requiring identification of the work site, 
building description, building owner, certified lead abatement firm, and 
individuals required to be identified on the notification form. Any changes to 
the original notification will require that an amended notification be 
submitted. 
(b) Responsibility. It is the responsibility of the certified lead firm to 
notify the ELNS and regional office of any initial notifications, amendments, 
cancellations, or emergency notifications. Each notification made to the ELNS 
shall contain the original signature of the certified firm's owner or an 
authorized agent of the firm. 
(c) Timeliness of notification. 
(1) ELNS notification. Written notifications of lead abatement activity must be 
hand delivered, express mailed, or postmarked at least seven working days (not 
calendar days) before the start of lead-based paint abatement. Notifications 
must be delivered by United States Postal Service, commercial delivery service, 
or by hand delivery. Telephone facsimile (FAX) of notifications to the ELNS is 
not permitted. The start date is considered to be the date when lead-based paint 
abatement begins. 
(2) Regional office notification. In addition to the notification requirement in 
subsection (c)(1) of this section, a copy of the notification must be received 
by the regional office on the same date that the notification is mailed to the 
ELNS, which shall be at least seven working days prior to the start of the lead-
based paint abatement. The copy of the notification may be hand delivered, 
express mailed, or faxed to the regional office. 
(d) Start/Stop-date amendments. For any changes to the start and/or stop-
date(s), the ELNS and the appropriate regional office shall be notified by 
telephone during the hours of 8:00 a.m. to 5:00 p.m. Central Standard Time (CST) 
prior to the original start and/or stop-date(s) as previously specified on the 
notification form. A written amended notification must be postmarked within 24 
hours following the telephone communication with the ELNS and the regional 
office. 
(e) Cancellations. When a lead abatement project is to be cancelled, the ELNS 
and the regional office shall be notified by telephone during the hours of 8:00 
a.m. to 5:00 p.m. CST at least 24 hours prior to the start date, and a 
notification of cancellation must be submitted to the ELNS and postmarked no 
later than 24 hours following the telephone communication with the ELNS and 
regional office. The copy of the notification shall also be hand delivered, 
express mailed, or faxed to the regional office. 
(f) Emergency notification. In the event of lead abatement made necessary by an 
unexpected or unplanned lead incident, notification will be made as soon as 
practicable, but not later than the following work day after the occurrence of 
the incident. Initial notification shall be made by telephone to the ELNS and 
regional office followed by formal notification on the department's notification 
form. Emergencies shall be documented to the extent that the need for the 
emergency is evident. An emergency lead abatement operation means a lead 
abatement operation that was not planned, but results from a sudden, unexpected 
event. This event, if not immediately attended to, presents a public health or 
safety hazard. Emergencies do not include immediate abatement work resulting 
solely from a lack of adequate planning for foreseeable lead abatement activity. 
(g) Lead abatement notification fees. 
(1) Applicability. The certified firm's owner or an authorized agent of the firm 
shall remit to the department a fee that is based on each child-occupied 
facility, individual and separate residential dwelling, or each building within 
a multi-family dwelling complex to be abated. 
(2) Payment. An invoice for the required fee will be sent to the person 
submitting the notice after the notification has been received by the 
department. Fee amounts, address, and fund numbers are included on the form. 
Payment must be received no later than 60 days following the invoice date. 
(3) Fees. The fee for each original notification is $50. If a cancellation is 
made in accordance with subsection (e) of this section, then the original 
notification fee will be refunded minus a total processing fee of $25. 
(4) Nonpayment of fees. Failure to pay the required fee after an invoice has 
been sent shall be considered a violation and may subject the certified firm or 
authorized agent of the firm to administrative penalties as listed in 
sec.295.220 of this title (relating to Compliance: Administrative Penalty). The 
certified firm or authorized agent of the firm may also be subject to civil or 
criminal penalties if applicable. Governmental organizations may submit a copy 
of the interagency transfer document or a statement that a check has been 
requested and is in processing. 

sec.295.219. Compliance: Reprimand, Suspension, Decertification, and 
Deaccreditation. 
(a) After notice to the certified or accredited person of an opportunity for a 
hearing in accordance with subsection (c) of this section, the Texas Department 
of Health (department) may reprimand the person or modify, suspend, suspend on 
an emergency basis, or decertify a certification or deaccredit an accreditation. 
(b) The department may reprimand any certified or accredited person, or may 
suspend or decertify a certification or deaccredit an accreditation for: 
(1) failure to comply with any provision of the Act, any rule adopted by the 
Texas Board of Health, or any order issued by the department or a court; 
(2) failure to comply with applicable federal or state standards for lead-based 
paint activities; 
(3) failure to maintain records as required by these sections; 
(4) failure to meet the qualifications for which one holds a certification or 
accreditation; 
(5) fraudulently, by misrepresentation, or deceptively obtaining or attempting 
to obtain a certification or contract for a lead-based paint activity; 
(6) falsifying records that are required to be maintained by this section; or 
(7) failure to pay required annual certification or accreditation fees. 
(c) The contested-case hearing provisions of the Administrative Procedure Act, 
Texas Government Code, Chapter 2001, shall not apply to any enforcement action 
proposed to be taken under this section. The department's fair hearing 
procedures of the Texas Administrative Code, Title 25, Chapter 1, shall apply. 
Additionally, in cases where the department proposes to deny the issuance or 
renewal of certification or accreditation, the burden of proof shall be on the 
applicant to show that said applicant has met requirements or criteria for 
certification or accreditation. 
(d) If a certification or accreditation issued under these sections has been 
suspended, the person(s) named in the suspension are not eligible to reapply for 
certification or accreditation under these sections of this title (relating to 
Texas Environmental Lead Reduction) for one year.
(e) If a certification issued under these sections of this title (relating to 
Texas Environmental Lead Reduction) has been decertified, the person(s) named in 
the decertification are not eligible to reapply for certification under these 
sections for three years. 

sec.295.220. Compliance: Administrative Penalty.
(a) If a person violates the Act, or a rule adopted or order issued under the 
Act, the Texas Department of Health (department) may assess an administrative 
penalty. 
(b)-(c) (No change.) 
(d) Individual violations may be reduced or enhanced based on the considerations 
listed in subsection (c) of this section, or other matters that justice may 
require. A maximum reduction or enhancement of 50% per individual violation may 
be considered, based on the facts presented to the department.
(e) (No change.) 
(f) Violations shall be placed in one of the following severity levels. 
(1) Severity Level I. The base penalty for a Level I violation, first occurrence 
will not exceed $5,000 per day, per violation. Examples of Level I violations 
include, but are not limited to: 
(A) working without certification from the department or working with improper 
(forged, altered, etc,) certification; 
(B) working with a suspended or decertified certification;
(C) failing to develop and implement a written occupant protection plan; 
(D) providing training certificates to persons who have not attended the 
required training course as specified by the department; 
(E) using prohibited lead abatement methods such as open-flame burning or 
torching, machine sanding or grinding without a high-efficiency particulate air 
(HEPA) vacuum tool, uncontained hydroblasting or high pressure washing, abrasive 
blasting or sand blasting without HEPA vacuum exhaust tools, or heat guns that 
operate at 1100 degrees Fahrenheit or above; or 
(F) training for certification purposes without obtaining accreditation from the 
department. 
(2) Severity Level II. The base penalty for Level II violations on a first 
occurrence will not exceed $2,000 per day, per violation. Examples of Level II 
violations include, but are not limited to: 
(A) failing to submit a notification to the department; 
(B) failing to conduct a training course for the specified time period; 
(C) certified supervisor not onsite or available directly through a pager or 
answering service; or 
(D) refusing or impeding entry to department representatives in order to conduct 
compliance inspections. 
(3) Severity Level III. The base penalty for Level III violations on first 
occurrence will not exceed $1,000 per day, per violation. Examples of Level III 
violations include, but are not limited to: 
(A) failing to pay the required notification fee to the department;
(B) submitting an improper notification to the department;
(C) worker certificate not on a job site; 
(D) working with a lapsed certification; 
(E) training provider fails to submit information to the department regarding 
training course schedules, or to notify the department of cancellations within 
the specified time periods; 
(F) training with a lapsed training provider accreditation; or 
(G) Inspection/risk assessment report not prepared. 
(g) The person charged with the violation will be given the opportunity for a 
hearing conducted in accordance with the department's fair hearing procedures in 
Chapter 1 of this title (relating to the Board of Health).
(h)-(i) (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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805522
Susan K. Steeg
General Counsel
Texas Department of Health 
Effective date: May 10, 1998
Proposal publication date: December 12, 1997
For further information, please call: (512) 458-7236

CHAPTER 297. Indoor Air Quality 
SUBCHAPTER A. Public Schools
25 TAC sec.sec.297.1-297.6
The Texas Department of Health (department), by majority vote of the Texas Board 
of Health (Board) on April 17, 1998, enters this order finally adopting new 
sec.sec.297.1 - 297.6, concerning the voluntary guidelines for indoor air 
quality (IAQ) in public schools. Sections 297.2 - 297.6 are adopted with changes 
to the proposed text as published in the December 5, 1997, issue of the Texas 
Register (22 TexReg 11989). Section 297.1 is adopted without changes, and 
therefore the section will not be republished in the Texas Register. These 
sections comply with House Bill 2850 (HB 2850), 74th Legislature, 1995, which 
requires the Board of Health to establish, by rule, voluntary guidelines for IAQ 
in public schools. The sections cover guidelines for establishing a school IAQ 
program; for IAQ issues regarding design, construction, renovation, maintenance 
and operation of schools; and IAQ responsibilities for building occupants. HB 
2850 amended the Health and Safety Code, Subtitle C, Title 5, by adding Chapter 
385. Section 385.002(a) gives the department the statutory authority to 
establish voluntary guidelines.
The new sections provide a means to improve IAQ in schools that could produce a 
reduction in the incidence of health effects related to poor IAQ between the 
students and staff resulting in a better learning environment, higher 
attendance, fewer illnesses, and increased productivity. Improved IAQ should 
also preserve and improve the efficiency of the school physical plant and 
equipment. If IAQ problems are reduced, more cost effective use of resources 
could result. Furthermore, schools with serious IAQ problems that implement the 
guidelines are less likely to be closed or the occupants temporarily relocated. 
Improved relationships among school administrations, parents and staff, reduced 
risk of negative publicity, and reduced potential liability could also result.
The following is a summary of comments received. Following each comment is the 
department's response. 
Comment: Concerning the preamble, one commenter suggested information relating 
to certain existing IAQ parameters, guidelines and publications be included in 
the preamble for information purposes. 
Response: The department has not added the requested information because it 
believes neither the preamble nor the guidelines is the appropriate location for 
this type of information. The department initially considered adding this 
information to the body of the guidelines. The suggested additions are not 
specific for IAQ in schools, and thus, may or may not be applicable to a 
specific situation in a school. Also, this type of information would be more 
appropriate in a document where an explanation of the intent and limitations of 
this information can be given, so schools can make the proper judgment of how it 
should be applied. Information on these and other specific guidelines, and 
standards are available from many resources, including the "Texas Department of 
Health Indoor Air Quality Manual for Public Schools," which should be available 
from The department at the end of this year. The manual is being prepared; for 
more information contact the Indoor Air Quality Branch of Texas Department of 
Health, 1100 West 49th Street, Austin, Texas 78756 or e-mail at 
iaq@tdh.state.tx.us.
Comment: Concerning the preamble, one commenter suggested in section 4, of the 
proposed rules published in the December 5, 1997, issue of the Texas Register 
(22 TexReg 11991), second paragraph, third sentence, the word "of" be deleted 
for clarity. 
Response: The department agrees this change would make the sentence clearer; 
however, the preamble for the proposed guidelines will not be republished and 
thus, the department cannot make this change. 
Comment: Concerning sec.297.2, the definition of "Acceptable indoor air 
quality," one commenter suggested adding this sentence to this definition: 
"Since even very low levels of contamination may produce a negative impact on 
the health of individuals in susceptible populations such as those that have 
chemical sensitivity, asthma, or allergies, it is prudent to keep levels of all 
potential contaminants as low as reasonably achievable." 
Response: The department did not make this addition. Although the department 
strongly agrees with trying to achieve the lowest possible contaminant levels to 
protect the most susceptible populations, the department feels this definition 
is not the appropriate place for this statement. The department believes these 
guidelines as written reflect the concern to protect building occupants by 
recommending the use of the lowest toxicity and lowest emitting materials.
Comment: Concerning sec.297.2, the definition of "Acceptable indoor air 
quality," one commenter suggested adding specific guidelines to this definition, 
such as the "Texas General Services Commission's Architectural and Engineering 
Guidelines, Appendix C: IAQ Guidelines." 
Response: The department did not make this addition as it believes this 
definition is not the appropriate place for inserting specific guidelines and 
standards. Also, the department's purpose with these rules was to publish 
general guidelines that would allow schools leeway in determining the best and 
appropriate methods or conditions to use for improving indoor air quality. 
Information on these and other specific guidelines, and standards are available 
from many resources, including the "Texas Department of Health Indoor Air 
Quality Manual for Public Schools," which should be available from The 
department at the end of this year (see the last sentence of the response to the 
first comment). 
Comment: Concerning sec.297.2, the definition of "Air contaminant," one 
commenter suggested the word "and" be changed to "that." 
Response: The department agrees, and this change has been made. 
Comment: Concerning sec.297.3(a)(6), one commenter suggested the article "an" be 
inserted before "energy manager." 
Response: The department agrees and this change has been made. 
Comment: Concerning sec.297.4(a)(3)(D)(ii), one commenter suggested adding the 
wording "that are kept under negative pressure" after the word "provided."
Response: The department agrees and added this phrase; for clarity the comma was 
deleted and the sentence was restructured. 
Comment: Concerning sec.297.4(a)(3)(E)(i), one commenter suggested the addition 
of a sentence referring to specific guidelines in the "Texas General Services 
Commission's Architectural and Engineering Guidelines, Appendix C: IAQ 
Guidelines." Another commenter requested this paragraph be reworded to specify 
that "carpet floor covering products should meet the emissions criteria as 
listed in the following indoor air quality testing programs: Carpet and Rug 
Institute (CRI) Indoor Air Quality Carpet testing program, CRI Indoor Air 
Quality Adhesive testing program, and CRI Indoor Air Quality Cushion testing 
program." 
Response: The department did not make these changes. The department's purpose 
was to publish general guidelines that would allow schools leeway in determining 
the best and most appropriate methods or conditions to use for improving their 
indoor air quality. Information on these and other specific guidelines, and 
standards are available from many resources, including the "Texas Department of 
Health Indoor Air Quality Manual for Public Schools," which should be available 
from The department at the end of this year (see the last sentence of the 
response to the first comment). 
Comment: Concerning sec.297.4(a)(3)(E)(iii), one commenter was concerned that 
the proposed wording may prevent carpet from being used by schools, and may 
increase the risk of liability for school officials for having carpets in 
schools. It was requested that this clause be deleted from the guidelines.
Response: The department did not delete sec.297.4(a)(3)(E)(iii), but reworded 
the statement to clarify the department's specific concerns so they may be 
properly addressed. The department believes porous or fleecy materials, 
including carpets, contribute to poor IAQ because they are improperly maintained 
and hold moisture that may not be removed adequately or quickly enough. These 
two concerns can exacerbate health problems, such as asthma and allergies in 
building occupants. Therefore, the department believes these potential problems 
will be minimized with the use of non-porous materials where practical. These 
guidelines are voluntary, and schools may choose furnishings, wall-coverings, 
and floor-coverings best suited to individual needs. Carpet may be the best 
choice of floor-covering in some settings, but not in others. With the decision 
to use carpet in a school comes a corresponding commitment to implement a 
preventive and scheduled maintenance program. The department believes carpet 
should not be used if this commitment cannot be executed due to budget 
constraints, inadequately trained staff, or other reasons. Detailed information 
regarding selection and proper care of carpeting and other flooring materials to 
help ensure healthy IAQ will be provided in the "Texas Department of Health 
Indoor Air Quality Manual for Public Schools," which should be available at the 
end of this year (see the last sentence of the response to the first comment). 
Regarding the liability comment, the department does not agree that current 
wording may increase the risk of liability for school officials for having 
carpets in schools. The department has looked at the issue of new liabilities 
and finds no new liabilities are created by these voluntary guidelines for 
school boards, for professional employees of a school district or for school 
districts. The new law specifically states that they create no liability for a 
school board for an injury caused by the failure to comply with the voluntary 
guidelines (Health and Safety Code, sec.385.003). Professional employees of a 
school district are not personally liable for acts within the scope of their 
duties that involve the exercise of judgment or discretion except in 
circumstances that are not likely to apply in this situation (Education Code 
sec.22.051(a)). A professional employee includes a superintendent, principal, 
teacher, supervisor, social worker, counselor, teacher's aide or any other 
person whose employment requires certification and the exercise of discretion 
(Education Code sec.22.051(c)). School districts are excluded from liability by 
the Torts Claim Act under the doctrine of sovereign immunity except for injuries 
involving motor vehicles (Texas Civil Practice & Remedies Code sec.101.051). 
Comment: Concerning sec.297.4(a)(4)(A), one commenter suggested adding an 
additional sentence as follows: "Ventilation rates of a minimum of 15 cubic feet 
per minute (cfm) per person of fresh, outdoor air, should be used on a 
continuous basis during the hours of building occupancy and for at least one 
hour after daily cleaning and one hour prior to occupancy to flush the building 
of any build-up of contamination from cleaning products or out-gassing of 
building contents during unoccupied periods," or alternatively, "The heating, 
ventilation, and air conditioning (HVAC) systems should be operated to provide 
acceptable outside air with quantities in conformance with the most current and 
accepted standards. Consideration should be given to flushing the building after 
daily cleaning and before occupancy to flush the building of any build-up of 
contamination from cleaning products or out-gassing of building contents during 
unoccupied periods." Additionally, the commenter suggested The department 
consider a specific carbon dioxide (CO<sub>2) level such as the American Society 
of Heating, Refrigerating and Air Conditioning Engineers' (ASHRAE) proposed 
guideline ASHRAE 62R. 
Response: The department did not make these changes. The department's purpose 
was to publish general guidelines that would allow schools leeway in determining 
the best and most appropriate methods or conditions to use for improving their 
indoor air quality. While these suggested standards have merit, they may not be 
adequate to provide a healthy environment in some settings, such as in a new 
building with new furnishings that are emitting high levels of volatile organic 
compounds (VOCs) or in special use areas such as art rooms, shops, science labs, 
etc. The Department guidelines as worded allow interpretation for varying 
circumstances that may be encountered in each school. For example, 
sec.297.5(d)(1), concerning outside air for HVAC systems, states "The HVAC 
systems should be operated to provide acceptable outside air with quantities in 
conformance with the most current and accepted standards, up to the equipment 
capabilities." Section 297.5(d)(7), regarding HVAC systems, Preconditioning, 
states "The HVAC systems should be operated for sufficient time before building 
occupancy to remove contaminants and to condition the air." Information on these 
and other specific guidelines, and standards are available from many resources, 
including the "Texas Department of Health Indoor Air Quality Manual for Public 
Schools," which should be available from the department at the end of this year 
(see the last sentence of the response to the first comment).
Comment: Concerning sec.297.5(d)(1), one commenter suggested replacing "to" with 
"with the" in front of the wording "most current". 
Response: The department agrees and has made the change. 
Comment: Concerning sec.297.5(d)(1), one commenter suggested adding the 
following wording to this section: "Upgrading ventilation equipment (including 
controlling additional humidity) to meet the current standard should be 
considered."
Response: The department did not make this addition. Although the department 
encourages, the upgrade of ventilation equipment, there may be other equipment 
and systems that need upgrade. Conducting an IAQ assessment as sec.297.3(a)(2) 
would determine the items that need upgrade. Then the school could include the 
upgrades in future goals developed per sec.297.3(a)(3) and future budgets as per 
sec.297.3(a)(5). 
Comment: Concerning sec.297.5(f)(2), one commenter suggested the following 
sentence be added: "Porous material that is not dried within 24 hours should be 
replaced, preferably with non-porous material." 
Response: The department did not make this addition. Although the department 
encourages water-damaged porous materials be removed or dried within 24 hours to 
prevent microbial growth, the department believes that schools should be 
provided with the leeway to best resolve their specific problem. The degree of 
damage, the quality and quantity of the material, the means to clean the 
material throughly after 24 hours, the location of the water damage, and the 
availability and cost of a non-porous replacement material are just a few of the 
considerations that must be evaluated before selecting the best plan of action. 
Comment: Concerning sec.297.5(h)(1), (2), (5), and (6), Cleaning products, one 
commenter suggested wording to the effect that there are nontoxic cleaning 
products available for virtually every cleaning job, that in most cases, work as 
well as or better than traditional products, and that precautionary measures 
recommended in the proposed wording are usually not necessary if nontoxic 
products are used. 
Response: The department did not make these additions, as the wording of 
paragraph sec.297.5(h)(1), which states "The least toxic cleaning products 
needed to accomplish the goal should be used", addresses this concern 
adequately. The least toxic cleaning product implies that a nontoxic product is 
preferred over a toxic product. Schools should be able to use most traditional 
products with no problems, if they are used correctly. 
Comment: Concerning sec.297.5(h)(3), one commenter would like to add: "Do not 
use hazardous products unless necessary for a particular job" to this paragraph. 
Response: The department did not make the addition, as sec.297.5(h)(1) which 
states that "the least toxic product needed to accomplish the goal should be 
used," adequately addresses the above concern. 
Comment: Concerning sec.297.5(i), three commenters would like added a reference 
to 22 Texas Administrative Code (TAC) sec.595.14, Reduced Impact Pest Control 
Services, to put more emphasis on the use of non-chemical methods or less toxic 
materials for pest control management. 
Response: The department agrees and has added a new paragraph, sec.297.5(i)(3), 
which encourages schools that contract with outside pest management services to 
select services that conform to this provision. The department believes in the 
importance of utilizing non-chemical and/or least toxic forms of pest control 
whenever possible. The 22 TAC sec.595.14 sets forth rules whereby businesses 
(pest control operators) may qualify to use the "Reduced Impact Pest Control 
Services" designation. 
Comment: Concerning sec.297.5(i), three commenters would like wording added to 
strongly discourage any use of organophosphates or any "Red" list products in 
schools for pest control. 
Response: The department agrees with the intent of the commenters and has 
reworded this subsection to clarify the department's intent. The department 
agrees that the use of organophosphates or any "Red" list product in schools 
should be discouraged. The original intent of this subsection was to use the 
least toxic material at all times which would discourage the use of 
organophosphates and "Red" list products. To clarify this intent, sec.297.5(i) 
section has been separated into three paragraphs: sec.297.5(i)(1) which 
clarifies that non-chemical management strategies are preferred and that least 
toxic chemicals are preferred when chemicals are needed, sec.297.5(i)(2) 
indicates that the school pest management program must be in accordance with the 
Structural Pest Control Act, Texas Revised Civil Statutes, Article 135b-6, 
sec.4J and 22 Texas Administrative Code, sec.595.11, and for clarity, the last 
sentence of the subsection was converted to paragraph sec.297.5(i)(4). A new 
sec.297.5(i)(3) was added in response to the comment above. 
Comment: Concerning sec.297.6(g)(1), one commenter believes the proposed wording 
is unclear regarding consulting and suggests the following wording: "School 
officials should consult with school health officials, parents, students, and 
with written permission, their physicians, regarding student allergies and 
chemical intolerances." 
Response: The department agrees and has restructured this paragraph for clarity. 
Additionally, the department has reworded sec.297.6(g)(2) and (3) to be 
consistent with the verb tense in the new sec.297.6(g)(1).
Comment: Concerning sec.297.6(l), three commenters are concerned that current 
wording may not be understood and result in the use of ozone-generators in 
occupied spaces in an unsafe manner. The commenters feel there are no 
circumstances under which an ozone-generator can be safely used in occupied 
spaces, because ozone is a lung irritant and can evoke sensitivity even at very 
low concentrations. Evidence is cited of reactions to ozone at levels below 
currently recognized health standards for outdoor air concentrations of ozone. 
The commenters all suggested that this paragraph be reworded to read: "Ozone-
generating devices should not be used in occupied areas. Ozone is a lung 
irritant." 
Response: The department agrees to make this change as the suggested wording 
will be less confusing than the original wording. At this time, there is no data 
available indicating a safe concentration of ozone for children that would also 
be effective in removing the various possible air contaminants and without the 
potential of producing possibly more toxic products from the reaction of the 
ozone with the air contaminants. 
Two individuals and the following organizations provided the comments: the 
Carpet and Rug Institute, envl-CARE 2000, Inc., and Sterling Pest Management. 
The commenters were generally supportive of the rules. However, they had 
comments, suggestions and concerns about specific sections. 
Comments were received from the Environmental Health Center - Dallas after the 
closing date. These comments were supportive of the rules and similar to other 
comments received and the department believes they have been adequately 
addressed in the current responses. 
The new sections are adopted under the Health and Safety Code, sec.385.002, 
which provides the Texas Department of Health with the authority and duty to 
establish voluntary guidelines for indoor air quality in public schools. 

sec.297.2. Definitions. 
The following words and terms, when used in these sections, shall have the 
following meanings, unless the context clearly indicates otherwise. 
(1) Acceptable indoor air quality - That quality of air in an occupied enclosed 
space that is within an established temperature and humidity comfort zone, and 
which does not contain air contaminants in sufficient concentration to produce a 
negative impact on the health and comfort of the occupants. 
(2) Air contaminant - A gaseous, liquid, or solid substance or combination of 
substances in a form transported by or in air that has the potential to be 
detrimental to human health. 
(3) Board - The Texas Board of Health 
(4) Building commissioning - The process of ensuring that all building systems 
are installed, functionally tested, and operated in conformity with design 
intent. Commissioning includes planning, design, construction, start-up, owner 
acceptance, and training throughout the life of the systems and building. 
(5) Department - The Texas Department of Health. 
(6) HVAC system - The heating, ventilation, and air-conditioning system. 
(7) IAQ - Indoor Air Quality. The quality of air in an occupied enclosed space. 
(8) IAQ coordinator - A designated person at the school or school district level 
who provides leadership and coordination of IAQ activities. The responsibilities 
should include coordination of an IAQ team, preparation for emergency responses, 
dissemination of IAQ information, tracking of IAQ complaints and direction of 
responses, and communication of IAQ issues and status to interested parties. 
(9) IAQ management plan - A written set of steps for preventing and resolving 
IAQ problems. 
(10) Indoor air pollution - The presence, in an indoor environment, of one or 
more air contaminants in sufficient concentration and of sufficient duration to 
be capable of causing adverse effects to human health.
(11) Microbials - Agents derived from, or that are, living organisms (e.g., 
viruses, bacteria, fungi, and mammal, bird and dust mite antigens) that can be 
inhaled and can cause adverse health effects including allergic reactions, 
respiratory disorders, hypersensitivity disorders, and infectious diseases. Also 
referred to as "microbiologicals" or "biological contaminants." 
(12) Negative pressure - A condition that exists when the air pressure in an 
enclosed space is less than that in the surrounding areas. Under this condition, 
if an opening exists between these locations, air will flow from surrounding 
areas into the negatively pressurized space. A negatively pressurized building 
will have air flow from the outside into the building through available 
openings. 
(13) Positive pressure - A condition that exists when the air pressure in an 
enclosed space is greater than that in the surrounding areas. Under this 
condition, if an opening exists between these locations, air will flow from the 
positively pressurized space into surrounding areas. A positively pressurized 
building will have air flow from the building to the outside through available 
openings. 
(14) Preventive maintenance - Regular and systematic inspection, cleaning, and 
replacement of worn parts, materials and systems. Preventive maintenance helps 
to keep parts, materials, and systems from failing by ensuring they are in good 
working order. 
(15) Public school - A building owned by a public school district or leased by a 
public school district for three months or more that is used by the district for 
a purpose that involves regular occupancy of the building by students. 

sec.297.3. Recommendations for Implementing a School IAQ Program.
(a) Initial program development. The development of a school IAQ program should 
include the following considerations. 
(1) IAQ Coordinator. An IAQ coordinator should be appointed to manage the IAQ 
program. 
(2) IAQ assessment. An IAQ assessment of all facilities should be performed to 
identify and document problem areas. Operational and maintenance needs that can 
be addressed immediately, and in the future, should also be identified and 
documented. 
(3) Development of goals. Based on the results of the IAQ assessment and 
resources available, each public school district should develop goals which must 
be achieved for the implementation of an effective IAQ program. 
(4) Public school board/administrative support for stated goals. Administrative 
support from the highest level of the organization and a written commitment from 
the school board, superintendent, and other key personnel to the goals is 
necessary for an effective IAQ program. 
(5) Funding. Adequate budgets are necessary for IAQ staff to meet the stated 
goals. The amounts of funding will vary based on the scope of each public school 
district's program. 
(6) Staff. An IAQ support team should be developed as necessary to achieve the 
district's goals. The team may include administrators, health officials, 
custodians and maintenance personnel, an energy manager, design and construction 
staff, teachers, parents, students and others. 
(b) IAQ management plan. A written IAQ management plan should be developed and 
maintained. The plan should include the following. 
(1) Training. Education and training of the IAQ coordinator and support team, 
teachers, staff and students on the recognition, prevention and resolution of 
IAQ problems, as appropriate. 
(2) Communication. A procedure for communicating with students, parents, 
faculty, and staff regarding IAQ issues. 
(3) Complaint response. A written procedure for documenting and responding to 
IAQ complaints and problems. 
(4) Record keeping. An IAQ complaint collection, resolution, and records 
retention program. 
(5) Maintenance and operation plan. A written building maintenance and operation 
plan containing: a written description of the building systems and building 
functions and occupancy, schematics and/or as-built drawings with equipment 
locations and performance criteria, outside air requirements, sequences of 
operation, daily building and system operation schedules, test and balance 
reports, maintenance schedules, building inspection checklists and maintenance 
equipment checklists. The plan should be updated annually.
(6) Implementation schedule. A schedule to implement the management plan. 
(7) Annual review. Annual IAQ inspection/review of facilities including a walk 
through by the IAQ coordinator or designee. 
(c) School board review. A review of the IAQ program status and future needs 
should be presented annually to the School Board by the IAQ coordinator. 

sec.297.4. Design/Construction/Renovation.
(a) Building design (new construction). The following factors should be 
considered during the planning and design stages. 
(1) New buildings. Design and construction standards that facilitate the 
maintenance of acceptable IAQ should be established. 
(2) Site selection. During the selection of building sites, consideration should 
be given to minimizing or designing to avoid potential contaminant sources. Some 
of these considerations include the following. 
(A) Environmental assessment. An environmental assessment of property to 
identify on-site contamination that could affect indoor air quality should be 
conducted. 
(B) External contaminants. Potential external contaminant sources such as 
combustion products (freeways or power plants), dust generators (agricultural or 
cement plants), and industrial plants that may emit pollutants into the air 
should be identified. 
(C) Climate. Climate assessment data that include factors affecting building 
layout and other architectural design considerations such as elevation and 
prevailing winds should be developed and evaluated. 
(D) Radon. A radon assessment of the site should be conducted, if applicable. 
(E) Drainage. Conduct a drainage survey to assure water can be diverted from the 
building site. 
(3) Architectural design. 
(A) Building structure factors. Factors that can affect IAQ, such as the shape 
and size, orientation, layout, proximity to pollution-generating activities, 
building materials, types of windows and doors, ventilation system design, 
location of air intakes and exhausts, and susceptibility to pest intrusion 
should be considered. 
(B) Internal contaminant sources. Proper venting to the outside atmosphere of 
pollution source areas, such as science laboratories and preparation rooms, 
housekeeping and material storage, restrooms, workshops, cooking areas, art and 
hobby rooms, computer rooms, copy rooms, and other emission-producing spaces 
should be provided. 
(C) Moisture prevention. Condensation, water vapor intrusion, and other moisture 
problems in the building should be avoided through the proper design and 
installation of the building components. 
(D) Space allocation. 
(i) Adequate space for maintenance access and proper operation of building 
equipment, such as HVAC system equipment and boilers, should be provided. 
(ii) Separate rooms for materials and chemical storage that are kept under 
negative pressure and vented to the outside atmosphere should be provided. 
(E) Building materials and furnishings. 
(i) The lowest chemical-emitting building materials and furnishings that are 
practical should be used. Contaminant-emitting and retention potential of 
furnishings, floor and wall coverings and casework should be evaluated. 
Emissions data from manufacturers should be evaluated before specifying or 
approving products. 
(ii) Materials that prevent (or at least inhibit) microbial growth without 
occupant exposure to potentially harmful chemicals should be used. 
(iii) The use of porous or fleecy materials is discouraged where unmanaged 
excessive moisture or improper maintenance occur. 
(iv) Projected life cycles and recycling of materials should be considered. 
(v) Maintenance requirements should be considered. Materials that can be easily 
cleaned with the least toxic cleaning supplies should be utilized when possible. 
(vi) Proper storage and protection of building materials to prevent water-damage 
before or during their installation should be provided.
(4) HVAC system design. HVAC systems should be designed to include the 
following. 
(A) Air intakes. Sufficient fresh outside air to maintain a healthy environment 
in all occupied areas should be provided. 
(B) Air distribution. Proper air distribution should be provided to all occupied 
areas. 
(C) Filters. Medium to high efficiency filtering systems for respirable 
particulates should be used. 
(D) Access doors/ports. Convenient access doors/ports to facilitate inspection, 
maintenance and cleaning of air handling units and ducts should be provided.
(E) Coils. Coils with adequate heating and/or cooling capacity and with features 
to facilitate maintenance should be used. 
(F) Drain pans. Insulated drain pans with proper drainage to prevent standing 
water should be installed on all new cooling (wet) coils.
(G) Drain traps. Drain traps should be properly installed when drain lines from 
condensate pans connect to sewer systems. 
(H) Ducts. Ducts with internal surfaces that are easily cleaned, not damaged by 
typical cleaning methods, do not harbor dust and microbials, and that will not 
emit materials or gases that can harm the occupants should be provided on all 
new HVAC systems. 
(I) Return air. Ducting of return air is recommended. 
(J) Positive building pressure. The wall cavities and rooms of the buildings 
should be maintained at a net positive pressure with respect to the outside 
atmospheric pressure. 
(K) Exhaust systems. Adequate exhaust systems for restrooms, storage rooms, copy 
rooms, animal areas, chemistry labs, computer rooms, industrial arts rooms, 
kilns, home economics rooms, locker rooms/showers, swimming pools and other 
areas with contaminant sources should be provided. These areas should be under 
negative pressure with respect to adjacent classrooms, offices and hallways. 
(i) Exhausts should be vented directly to the outside. 
(ii) Exhaust vents should be located to avoid contaminants being drawn back into 
the building. 
(L) Comfort. Adequate temperature and humidity control should be provided to 
maintain comfort in all occupied areas. 
(M) Humidity. Humidity should be maintained throughout the year to prevent mold 
growth. 
(N) Air diffusers. Air diffusers should be used to manage air flow volumes and 
patterns to manage for occupant comfort. 
(b) Maintaining acceptable IAQ during renovation. Building occupants should be 
protected from fumes and dust during renovation. 
(1) Hazardous chemicals and substances. Hazardous chemicals as defined in the 
Health and Safety Code, sec.502.003(13), and hazardous substances as defined in 
the Health and Safety Code, sec.361.003, should be managed and disposed of in a 
safe and legal manner. 
(2) Scheduling. Occupant exposure to contaminants should be minimized by 
scheduling renovation when school is not in session. 
(3) Isolation. Ventilation and barrier control strategies to isolate 
construction areas from the occupied areas should be used. 
(4) Water-damage. Porous building supplies that become water-damaged should be 
discarded. 
(5) Re-occupancy. All renovated areas should be thoroughly cleaned and 
ventilated prior to re-occupancy. 
(c) HVAC system testing. For new construction and major remodeling, the HVAC 
systems in those areas should be tested and balanced by an independent certified 
contractor. 
(d) Commissioning of building. Building commissioning should be provided by 
trained and knowledgeable technicians to assure proper operation of all building 
systems. 

sec.297.5. Building Operation and Maintenance Guidelines.
(a) Written preventive maintenance program. A written preventive maintenance 
program should be established for each public school to provide a healthy 
learning environment. The program should include the following.
(1) Filters. A system filter change out should be developed and implemented. A 
filter upgrade program should be implemented if the filters do not meet the 
latest recommended efficiency. 
(2) Coils and condensate drain systems. A cleaning program of the coil and 
condensate drain systems of the HVAC systems should be developed and 
implemented. 
(3) Cleanliness. The air supply and return systems and mechanical rooms should 
be kept clean and properly maintained. 
(4) Sewer traps. A sewer trap maintenance program should be developed and 
implemented to prevent sewer gas back drafts into buildings.
(5) Records. A written maintenance record program should be developed and 
implemented. 
(6) Maintenance requirements. Adherence to product manufacturers' maintenance 
requirements should be required as a minimum. 
(b) Training. Personnel should be educated and trained in the prevention, 
recognition, and resolution of IAQ concerns. 
(c) Housekeeping. 
(1) Storage. Air handling rooms should not be used for storage.
(2) Supplies. Maintenance and operational supplies should be kept in order and 
properly labeled in a clean, dry room to prevent contamination of the air and 
infestation of insects and rodents. 
(3) Cleaning procedures. Cleaning procedures and equipment should be selected to 
be effective and to minimize airborne dust. 
(d) HVAC systems. 
(1) Outside air. The HVAC systems should be operated to provide acceptable 
outside air with quantities in conformance with the most current and accepted 
standard, up to the equipment capabilities. Placement of outside air intakes 
should take into consideration potential external sources of contamination.
(2) Positive pressure. The HVAC systems should be operated to provide a positive 
building pressure to reduce the entry of contaminants, and provide more 
effective temperature and humidity control. 
(3) Moisture control. The HVAC systems should be operated to prevent excessive 
moisture that could cause microbial growth or high humidity.
(4) Ducts. 
(A) Inspection. Periodic visual inspection of ducts for mold, dirt and 
deterioration should be performed. 
(B) Cleaning. Cleaning of ducts internally lined with fibrous or soft material 
that can be damaged by mechanical cleaning devices is discouraged. Replacement 
of these types of contaminated lined ducts is preferred. 
(C) Replacement. Ducts with internal surfaces that are easily cleaned, not 
damaged by typical cleaning methods, do not harbor dust and microbials, and that 
will not emit materials or gases that can harm the occupants should be used when 
a duct is repaired or replaced. 
(D) Cleaning methods. The ducts should be cleaned using methods that will not 
expose occupants to potentially harmful substances. 
(5) Drain pans. Condensate drain systems should be free of microbial growth and 
other debris. The condensate pan should drain completely so there is no standing 
water. 
(6) Exhaust air. Exhaust air systems should be operating properly and vented to 
the outside. 
(7) Preconditioning. The HVAC systems should be operated for sufficient time 
prior to building occupancy to remove contaminants and to condition the air. 
(8) Access. If existing access to the HVAC systems does not allow proper 
inspection and maintenance, access ports should be installed.
(e) General operations and maintenance. 
(1) Scheduling. Schedule and conduct maintenance activities with high emissions 
(painting, roofing repair, pesticide applications) to minimize occupant exposure 
to indoor air contaminants. 
(2) Animals and plants. Live animals and plants should be maintained in a 
healthy and clean condition. 
(f) Microbial management. 
(1) Water intrusion. Damaged building systems or components that cause water 
condensation or water leaks in the building should be promptly repaired. 
(2) Water damage. Remove or dry, preferably within 24 hours, porous materials 
such as carpets and padding, ceiling tiles, sheet rock, and insulation that 
become water-damaged. Major water damage or flooding should be remediated by 
qualified personnel. 
(3) Cleaning/replacement. Promptly clean or replace materials contaminated with 
mold or other substances that may affect IAQ. Contaminated porous materials 
should be replaced. 
(4) Management. Microbial growth on surfaces or in water reservoirs is 
unacceptable and should be removed using procedures to avoid dissemination and 
worker/occupant exposure. Appropriate steps should be taken to prevent future 
growth in these locations, without causing occupant exposure to potentially 
harmful chemicals. 
(g) Sanitation considerations. 
(1) Sewage backups. Building occupants should be removed from any area flooded 
by sewage. The cleanup should ensure rapid decontamination (to include water 
extraction, cleaning and disinfection) and drying of all wet surfaces. 
Contaminated porous materials should be replaced, preferably with non-porous 
materials. 
(2) Wild animals. Birds, bats and other wild animals should not be allowed to 
roost in or otherwise enter occupied buildings, including attics or plenums or 
in or near fresh air intakes. Areas contaminated with urine and feces should be 
decontaminated. Protection for building occupants and workers should be required 
during the process. 
(h) Cleaning products. 
(1) Toxicity. The least toxic cleaning products needed to accomplish the goal 
should be used. 
(2) Directions. Follow manufacturers' directions for cleaning products. The use 
of excessive amounts of cleaning materials can cause unacceptable IAQ. 
(3) Training. Assure that all personnel using cleaning products with hazardous 
chemicals have been trained in the proper usage and handling of such products as 
required by the Texas Hazard Communication Act, the Health and Safety Code, 
sec.502.009. 
(4) Labeling. The public school employer shall follow the labeling requirements 
of the Health and Safety Code, sec.502.007.
(5) Ventilation. Adequate ventilation during and immediately after use of 
cleaning products should be used to minimize exposure to potentially harmful or 
irritating substances in the products. 
(6) Scheduling. Schedule the use of cleaning products when building is 
unoccupied to minimize exposure to students, staff and other occupants. 
(i) Pesticide use. 
(1) Pest management, for both building and lawn care, should emphasize 
nonchemical management strategies whenever practical, and least toxic chemical 
controls when pesticides are needed. 
(2) Pest management must be in accordance with the Structural Pest Control Act, 
Texas Revised Civil Statutes, Article 135b-6, sec.4J and 22 Texas Administrative 
Code, sec.595.11. 
(3) When contracting for pest control services, the use of businesses that 
conform to 22 Texas Administrative Code, sec.595.14 Reduced Impact Pest Control 
Services, is preferred. 
(4) Dead pests should be promptly removed from the premises.
(j) Emergencies. An emergency response plan, including staff training, should be 
developed for chemical spills, dangerous air contamination, and similar events. 
(k) Records. 
(1) Material safety data sheets. A public school employer shall maintain a 
legible copy of the current Material Safety Data Sheet for each hazardous 
chemical used in the workplace including those in cleaning supplies, pesticides 
and art supplies in accordance with the Health and Safety Code, sec.502.006. 
(2) Workplace chemical list. The employer shall prepare a workplace chemical 
list if required by the Health and Safety Code, sec.502.005.
(3) Facility chemical list. The employer shall prepare a facility chemical list 
(also known as a Tier Two report) if required by the Health and Safety Code, 
sec.506.006. 

sec.297.6. Recommended Building Occupant Responsibilities.
(a) Cleanliness. Classrooms and teaching supplies should be kept clean and 
orderly to prevent contamination of indoor air and conditions conducive to 
insect or rodent infestations. 
(b) Product usage. Products such as pesticides, air fresheners, scented 
products, and other materials that may be a health concern, should not be used. 
(c) Classroom activities. Use the least toxic instructional materials (markers, 
glue, art supplies, etc.) that will serve the intended purpose. When classroom 
activities/projects generate air pollutants, steps should be taken to minimize 
impact, such as using local exhaust fans or opening windows. 
(d) Diffusers and grilles. Supply air diffusers and return air grilles should be 
kept free and clear of any obstructions. 
(e) Spills. Spills should be cleaned up promptly and properly. Spills of 
hazardous chemicals must be disposed of in accordance with all applicable state 
and federal laws. 
(f) Pets. Classroom pets should be maintained in such a manner to prevent IAQ 
problems. 
(g) Sensitive individuals. Carefully consider and, to the extent feasible, 
accommodate the needs of sensitive individuals by the following.
(1) Consulting. Teachers of student(s) with allergies or chemical intolerances 
should consult, as necessary, student(s), parents, school health officials, and 
with written parental consent, their physicians. 
(2) Locating. Locate sensitive individuals away from potential sources of 
symptom-triggering substances and activities. 
(3) Discouraging. Discourage the use of scented personal care products or other 
scented products that may cause adverse reaction in sensitive individuals. 
(h) Food. Food should be stored in airtight containers and refrigerated if 
necessary. 
(i) Garbage. Waste containers should be stored properly, emptied regularly, and 
located away from air intakes or other sensitive areas. 
(j) Smoking. Smoking tobacco is prohibited in public schools under the Penal 
Code sec.48.01(a). 
(k) Portable air cleaning devices. Portable air cleaning devices may be of 
limited help in cleaning a small area. They must be properly maintained to be 
beneficial. 
(l) Ozone-generating devices. Ozone-generating devices should not be used in 
occupied spaces. Ozone is a lung irritant. 
(m) Reporting. Promptly report IAQ problems/complaints to the IAQ coordinator or 
designee. 
(n) Medical care. Any building occupant experiencing chronic or serious health 
problems is encouraged to seek appropriate medical care, and work with medical 
professional(s) in management of the illness. 
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805523
Susan K. Steeg
General Counsel
Texas Department of Health 
Effective date: May 10, 1998
Proposal publication date: December 5, 1997
For further information, please call: (512) 458-7236

PART II. Texas Department of Mental Health and Mental Retardation
CHAPTER 406.ICF/MR Programs
SUBCHAPTER E.Eligibility and Review
25 TAC sec.406.215
The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the 
repeal of sec.406.215, governing ICF/MR Programs: Eligibility and Review. The 
repeal of sec.406.215 is adopted without changes to the proposed text as 
published in the January 30, 1998, issue of the Texas Register (23 TexReg 717).
In accordance with the Federal Balanced Budget Act of 1997, the repeal removes 
the requirement for a periodic inspection of care (IOC) in ICFs/MR. There was no 
oral or written testimony offered at a public hearing conducted on February 19, 
1998. During the comment period, the department received comments from one 
organization, Concept Six, Austin. The commenter was supportive of the proposal. 
The repeal is adopted under the Texas Health and Safety Code, sec.532.015(a), 
which provides TDMHMR with broad rulemaking authority; and Human Resource Code, 
Chapter 32, sec.32.021, and Government Code, Chapter 531, sec.531.021, which 
provide the Texas Health and Human Services Commission (THHSC) with the 
authority to administer federal medical assistance funds and administer the 
state's medical assistance program. Senate Bill 509 of the 74th Texas 
Legislature clarifies THHSC's authority to delegate the operation of all or part 
of a Medicaid program to a health and human service agency. THHSC has designated 
TDMHMR as the operating agency for the ICF/MR program. The section affects Texas 
Human Resources Code, Chapter 32, Texas Government Code, Chapter 531, 
sec.531.021, and Texas Health and Safety Code, sec.532.015(a).
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.
Filed with the Office of the Secretary of State on April 17, 1998.
TRD-9805434
Charles M. Cooper
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: May 7, 1998
Proposal publication date: January 30, 1998
For further information, please call: (512) 206-4516

CHAPTER 409.Medicaid Programs
SUBCHAPTER D.Home and Community-based Services
25 TAC sec.409.100
The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts an 
amendment to sec.409.100, governing Home and Community-based Services (HCS) with 
changes to the proposed text as published in the January 23, 1998, issue of the 
Texas Register (23 TexReg 496-497). 
The adopted amendments remove the requirement for an HCS consumer to have a 
history of institutionalization in an Intermediate Care Facility for Persons 
with Mental Retardation or Related Conditions or a nursing facility in order to 
receive Medicaid-reimbursed supported employment through the HCS program. 
Passage of the Balanced Budget Act of 1997 eliminated the statutory requirement 
that home and community-based waiver program participants have been previously 
institutionalized in order to be eligible for supported employment services 
under the waiver program. The amendments allow Medicaid funding for supported 
employment services for all eligible HCS consumers. 
The term "Texas Rehabilitation Commission" was replaced with the term "a program 
funded under the Rehabilitation Act of 1973" in sec.409.100(a)(7) in order to 
more accurately reflect the full range of funded services. 
There was no oral or written testimony presented at a public hearing held on the 
February 19, 1998. Written comment supporting the amendment was received from 
one citizen and the Parent Association for the Retarded of Texas, Austin.
The amended section is adopted under the Texas Health and Safety Code, 
sec.532.015(a), which provides TDMHMR with broad rulemaking authority; and Human 
Resource Code, Chapter 32, sec.32.021, and Government Code, Chapter 531, 
sec.531.021, which provide the Texas Health and Human Services Commission 
(THHSC) with the authority to administer federal medical assistance funds and 
administer the state's medical assistance program. Senate Bill 509 of the 74th 
Texas Legislature clarifies THHSC's authority to delegate the operation of all 
or part of a Medicaid program to a health and human service agency. THHSC has 
designated TDMHMR as the operating agency for the HCS program.
The section affects Texas Human Resources Code, Chapter 32, Texas Government 
Code, Chapter 531, sec.531.021, and Texas Health and Safety Code, 
sec.532.015(a).

sec.409.100.Service Components of Home and Community-based Services (HCS) 
Program.
(a) HCS service components are selected for inclusion in applicants or program 
participant's Individual Plan of Care (IPC) to supplement rather than replace 
that individual's natural community supports. HCS service components are 
selected based on assessments which identify specific services and supports 
necessary for the individual to continue living in the community and prevent the 
individual's admission to institutional based services. The following service 
components are available to all individuals enrolled in the HCS Program unless 
indicated otherwise: 
(1) Case management is provided to all individuals enrolled in the HCS Program.
(2) Counseling and therapies, consisting of physical therapy, occupational 
therapy, speech and language pathology, audiology, social work, psychology, and 
dietary services may be provided according to the IPC.
(3) Nursing care may be provided in accordance with the IPC by licensed nurses. 
(4) Residential assistance does not include payments for room and board and may 
be provided in accordance with the IPC in one of the following three ways: 
(A) Supported home living is provided to individuals who are living in their own 
homes or the homes of their natural families; 
(B) HCS foster care is provided to individuals who are living in the home of a 
foster family provider or paid companion; or 
(C) Residential support is provided to individuals who reside in homes in which 
residential assistance is provided by staff who share the residence or who 
provide assistance on a scheduled shift basis. 
(5) Respite care may be provided to individuals who are living in the homes of 
their natural or adoptive family. Respite care is not an HCS reimbursable 
service for individuals who are receiving HCS foster care or residential 
support. Respite care may be provided in the individual's residence or in an 
approved setting outside of the individual's residence. Reimbursement for 
overnight respite care provided in a setting other than the individual's 
residence includes payment for room and board. The maximum annual reimbursement 
per IPC year (an IPC year is defined by the begin and end dates of an 
individual's IPC, which encompasses a 12-month period of time) is equal to 30 
multiplied by the daily reimbursement rate for respite care.
(6) Day habilitation may be provided to all enrolled individuals participating 
in day habilitation program activities which are exclusive of any other 
separately funded service including but not limited to, public school 
educational services, rehabilitative services for persons with mental illness, 
or programs funded by the Texas Department of Human Services or the Texas 
Rehabilitation Commission. Day habilitation is normally provided outside the 
individual's residence six or more hours per day five days per week. 
(7) Supported employment is provided in conjunction with day habilitation and 
may be provided up to an annual maximum of $3,000 per individual. Supported 
employment reimbursement is available only if documentation verifies that 
supported employment services have been denied or are otherwise unavailable to 
the individual through either a program funded under the Rehabilitation Act of 
1973 or the public school system. Any person receiving supported employment must 
have an identified need and desire for employment. 
(8) Adaptive aids may be provided for each individual up to a maximum of $10,000 
per IPC year. The individual's interdisciplinary team must approve the provision 
of all adaptive aids. Provision of adaptive aids outside the scope of those 
specified in the HCS waiver as approved by the Health Care Financing 
Administration (HCFA) must be preapproved by TDMHMR Medicaid Administration. 
(9) Minor home modifications may be provided to each individual up to a life-
time maximum of $7,500, after which $300 per IPC year may be provided for 
maintenance or additional modifications. Provision of minor home modifications 
outside the scope of those specified in the HCS waiver as approved by HCFA must 
be preapproved by TDMHMR Medicaid Administration.
(10) Dental services may be provided to each individual according to the IPC up 
to a maximum of $1,000 per IPC year. Dental services outside those specified in 
the HCS waiver as approved by HCFA will not be reimbursed. 
(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.
Filed with the Office of the Secretary of State on April 17, 1998.
TRD-9805441
Charles M. Cooper
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: May 7, 1998
Proposal publication date: January 23, 1998
For further information, please call: (512) 206-4516

TITLE 28. INSURANCE
PART I. Texas Department of Insurance
CHAPTER 5. Property and Casualty Insurance
SUBCHAPTER E. Texas Windstorm Insurance Association 
28 TAC sec.5.4016
The Commissioner of Insurance adopts new sec.5.4016, concerning the issuance of 
windstorm and hail insurance policies written through the Texas Windstorm 
Insurance Association that include coverage for an amount in excess of the 
maximum limit of liability approved by the Commissioner. The new section is 
adopted without changes to the proposed text published in the March 13, 1998, 
issue of the Texas Register (23 TexReg 2712). The Commissioner adopted the new 
section in a public hearing on April 16, 1998, Docket No. 2345. 
The new section is necessary to provide rules for the issuance by the Texas 
Windstorm Insurance Association (Association) of a windstorm and hail insurance 
policy that includes coverage for an amount in excess of liability limits 
approved by the Commissioner under sec.8D of Article 21.49 of the Insurance 
Code. Created in 1971 by the Texas Legislature as the Texas Catastrophe Property 
Insurance Association, the Association is composed of all insurers authorized to 
transact property insurance in Texas and operates pursuant to Article 21.49 of 
the Insurance Code. The Texas Legislature in H.B. 1632 (Acts 1997, 75th Leg., 
ch. 438, sec.1, eff. Sept. 1, 1997) changed the name of the Texas Catastrophe 
Property Insurance Association to the Texas Windstorm Insurance Association. The 
purpose of the Association is to provide windstorm and hail insurance coverage 
to residents in designated catastrophe areas who are unable to obtain such 
coverage in the voluntary market. Since its inception, the Association has 
provided this coverage to residents of 14 coastal counties: Aransas, Brazoria, 
Calhoun, Cameron, Chambers, Galveston, Jefferson, Kenedy, Kleberg, Matagorda, 
Nueces, Refugio, San Patricio and Willacy. The Association also provides 
coverage to certain designated catastrophe areas in Harris County: (i) since 
March 1, 1996, the area located east of a boundary line of State Highway 146 and 
inside the city limits of the City of Seabrook and the area located east of the 
boundary line of State Highway 146 and inside the city limits of the City of La 
Porte (Commissioner's Order No. 95-1200, November 14, 1995); (ii) since June 1, 
1996, the City of Morgan's Point (Commissioner's Order No. 96-0380, April 5, 
1996); and (iii) since April 1, 1997, the areas located east of State Highway 
146 and inside the city limits of the City of Shoreacres and the City of 
Pasadena (Commissioner's Order No. 97-0225, March 11, 1997). The legislature in 
1997 passed H.B. 1853 which enacted a new sec.8E in Article 21.49 of the 
Insurance Code (Acts 1997, 75th Leg., ch. 642, sec.4, eff. Sept. 1, 1997). New 
sec.8E authorizes the Association to issue a policy of windstorm and hail 
insurance that includes coverage for an amount in excess of the maximum limit of 
liability approved by the Commissioner pursuant to Article 21.49, sec.8D of the 
Insurance Code. This will enable Association policyholders who need limits of 
liability in excess of the maximum limits of liability currently available 
through the Association to purchase additional windstorm and hail insurance 
coverage from the Association up to the amount of reinsured excess coverage 
available to the individual risk under the reinsured excess coverage program. 
Currently, this additional coverage is only available through the non-regulated 
surplus lines market at generally higher costs. Under Article 21.49, sec.8E(a), 
the Association must obtain such reinsured excess coverage from a reinsurer 
approved by the Commissioner. Article 21.49, sec.8E(b) provides that the premium 
charged by the Association for the excess coverage shall be equal to the amount 
of the reinsurance premium charged to the Association by the reinsurer, plus any 
payment to the Association that is approved by the Commissioner. Article 21.49, 
sec.8E(c) provides that the Commissioner shall adopt rules as necessary to 
implement new sec.8E and that the Association may not issue excess coverage 
until such rules are adopted. The new section provides these rules. 
Subsection (a) specifies the purpose of the new section. Subsection (b) defines 
terms used in the new section. Subsection (c) addresses the administration of 
the reinsured excess coverage program, including the requirement that the 
Association distribute the available reinsurance capacity in a fair and 
reasonable manner to risks qualifying under the Association's reinsured excess 
coverage program and that the Association annually review the reinsured excess 
coverage program and the rules in the new section and provide an annual review 
summary to the Commissioner. Subsection (d) specifies procedures for approval of 
the reinsurer by the Commissioner. Under these procedures, the Association is 
required to submit a petition to the Commissioner requesting approval of the 
reinsurer before any excess per risk reinsurance contract or renewal of such 
contract may become effective. The subsection further provides that, after 
notice and hearing, the Commissioner shall issue an order approving or 
disapproving the proposed reinsurer, and that this order shall be issued no 
later than December 31 of each year preceding the calendar year in which the 
reinsured excess coverage program is operated except for the first year the 
program is operated when the order shall be issued following the adoption of the 
new section. Subsection (d) provides that the excess per risk reinsurance 
contract may not become effective until the Commissioner has issued an order 
approving the reinsurer. Subsection (d)(4) specifies procedures for approval of 
the reinsurer in the event the existing excess per risk reinsurance contract is 
amended during the term of the contract. Subsection (e) sets forth provisions 
applicable to issuance of coverage, including excess liability limits, policy 
provisions, and types of risks that may be eligible for the reinsured excess 
coverage. Subsection (f) specifies procedures for premium computation and 
display of premium on the declarations page of the policy. New Subsection (g) 
specifies procedures for proposal of the payment to the Association that is 
required to be approved by the Commissioner pursuant to Article 21.49, sec.8E(b) 
before it can be included in the premium charge for the excess coverage. Under 
subsection (g)(1), the payment to the Association that may be proposed by the 
Association for approval by the Commissioner may include the amount of the 
direct and indirect costs identified by the Association to administer the 
reinsured excess coverage program and may include costs for claims, 
underwriting, accounting, technical and administrative support, computer 
equipment, agent commissions, taxes, and any other administrative costs approved 
by the Commissioner. Subsection (g)(2) provides that the Commissioner, after 
notice and hearing, shall issue an order approving or disapproving the proposed 
payment to the Association. The new section will become effective May 15, 1998. 
No comments were received regarding the adoption of this proposal. 
The new section is adopted pursuant to the Insurance Code, Articles 21.49 and 
1.03A, and in accordance with the Government Code sec.sec.2001.004-2001.038. 
Pursuant to Article 21.49, sec.8E of the Insurance Code (Acts 1997, 75th Leg., 
ch. 642, sec.4, eff. Sept. 1, 1997), the Association may issue a policy of 
windstorm and hail insurance that includes coverage for an amount in excess of 
the maximum limit of liability approved by the Commissioner pursuant to Article 
21.49, sec.8D of the Insurance Code. Article 21.49, sec.8E(c) provides that the 
Commissioner shall adopt rules as necessary to implement new sec.8E and that the 
Association may not issue excess coverage until those rules are adopted. Article 
21.49, sec.8 and sec.5A authorize the Commissioner to promulgate policy forms 
for use by the Texas Windstorm Insurance Association. Article 1.03A authorizes 
the Commissioner of Insurance to adopt rules and regulations, which must be for 
general and uniform application, for the conduct and execution of the duties and 
functions of the Texas Department of Insurance only as authorized by a statute. 
The Government Code sec.sec.2001.004-2001.038 (Administrative Procedure Act) 
authorize and require each state agency to adopt rules of practice stating the 
nature and requirements of available formal and informal procedures and 
prescribe the procedures for adoption of rules by a state 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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805508
Caroline Scott
General Counsel and Chief Clerk
Texas Department of Insurance
Effective date: May 15, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 463-6327

TITLE 34. PUBLIC FINANCE
PART I. Comptroller of Public Accounts
CHAPTER 3.Tax Administration
SUBCHAPTER O.State Sales and Use Tax
34 TAC sec.3.329
The Comptroller of Public Accounts adopts an amendment to sec.3.329, concerning 
state sales and use tax refunds available to enterprise projects and to 
qualified businesses in enterprise zones, with changes to the proposed text as 
published in the February 20, 1998, issue of the Texas Register (23 TexReg 
1517).
This rule is being amended as a result of the passage of Senate Bill 226, 75th 
Legislature, 1997, which provides for the creation of defense economic 
readjustment zones (areas impacted by reductions in federal-defense contracting) 
and the designation of defense readjustment projects by the Texas Department of 
Economic Development. Businesses designated as projects are entitled to 
franchise tax and sales tax incentives. Subsection (d) of the proposed rule sets 
out the definitions pertaining to this subsection, refunds available, and 
requirements for filing for the refunds. The comptroller proposes to rename the 
rule, Enterprise Projects, Enterprise Zones, and Defense Readjustment Zones. 
No comments were received regarding adoption of the amendment. 
One correction was made to change the Texas Department of Commerce to the Texas 
Department of Economic Development. 
This amendment is adopted under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
The amendment implements the Tax Code, sec.sec.151.429, 151.4291, and 151.431. 

sec.3.329.Enterprise Projects, Enterprise Zones, and Defense Readjustment Zones. 
(a) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) Enterprise project - A qualified business designated by the Texas Department 
of Economic Development as an enterprise project under Government Code, Chapter 
2303.406, for a five-year period. 
(2) Enterprise zone - An area of the state designated by the Department of 
Economic Development as an enterprise zone. 
(3) Equipment and machinery - Any machinery and equipment, including office 
furniture and equipment, used exclusively in an enterprise zone by a qualified 
business. These terms do not include building materials or motor vehicles. 
(4) Local governing body - A governing body of a city or county with an 
enterprise zone within its boundaries. 
(5) New permanent job - A job that meets the criteria of a new permanent job as 
defined by the Texas Department of Economic Development for enterprise projects. 
(6) One-time refund - The maximum amount that may be refunded from all claims 
during the life of a qualified business regardless of the amount of tax paid or 
jobs retained in an enterprise zone.
(7) Period - The five-year period that the qualified business has been 
designated as a project unless the designation is revoked.
(8) Qualified business - A person, including a corporation or other entity, that 
the Texas Department of Economic Development certifies has met the criteria 
required under the Texas Enterprise Zone Act. 
(9) Qualified employee - An employee who works for a qualified business and who 
performs at least 50% of his service for the business within the enterprise 
zone. 
(10) Retained job - An existing employment position of a qualified business that 
has provided employment to a qualified employee of at least 1,820 hours 
annually. 
(b) Refund for job retention. 
(1) Eligibility for a one-time refund of state sales and use tax. A business is 
eligible for the refund if: 
(A) the business is certified as a qualified business by a local governing body; 
(B) has operated in an enterprise zone's jurisdiction for at least three 
consecutive years before filing a claim; 
(C) has retained 10 or more jobs held by qualified employees during the year; 
and 
(D) has been certified as eligible for a refund to the Comptroller's Department 
by the Texas Department of Economic Development. 
(2) When to apply for a one-time refund. On or after September 1, 1991, a 
qualified business may apply for a refund of state sales and use tax immediately 
upon receipt of certification from the Texas Department of Economic Development. 
(3) Accumulated purchases. A qualified business may apply for and receive a 
refund of tax paid on equipment and machinery upon which the qualified business 
paid sales or use tax within four years of the date of application. The allowed 
refund is up to $500 per qualified employee retained, for a total of not more 
than $5,000. See sec.3.325 of this title (relating to Refunds, Interest, and 
Payments Under Protest) for information on the statute of limitations on 
refunds. 
(4) How to apply for a one-time state sales or use tax refund. After a qualified 
business has been certified as eligible for a refund by the local governing body 
sponsoring the enterprise zone and by the Texas Department of Economic 
Development, the qualified business may obtain a refund by applying directly to 
the Comptroller of Public Accounts. A refund request submitted to the 
comptroller must: 
(A) be in writing on forms provided by the comptroller; 
(B) be accompanied by copies of the certification by the Department of Economic 
Development; and 
(C) list each item purchased, the name of each seller, invoice or contract 
number, dollar amount of each purchase, and amount of state tax paid on each 
purchase. 
(5) The refund applies to state tax only. No city, county, transit, special 
purpose district tax, or any other local sales and use tax may be obtained from 
the state. Information regarding city tax refunds may be obtained from the city 
having an enterprise zone within its boundaries.
(6) Manufacturers. A qualified business engaged in manufacturing that claims a 
sales tax refund under both sec.3.300 of this title (relating to Manufacturing; 
Custom Manufacturing; Fabricating; Processing) and this section on the same 
machinery and equipment, may not claim more than the total amount of state sales 
or use tax paid on the machinery and equipment. 
(7) Records. A qualified business must maintain records supporting the refund 
request which can be verified by audit. See sec.3.281 of this title (relating to 
Records Required; Information Required) and sec.3.282 of this title (relating to 
Auditing Taxpayer Records). 
(c) Enterprise projects. 
(1) An enterprise project qualifies for a refund of state sales and use tax of 
$2,000 for each job that has been retained or each new permanent job the 
enterprise project creates for a qualified employee during its designation as an 
enterprise project. A qualified business receiving its designation as an 
enterprise project after August 31, 1995, may not apply for a refund of taxes 
until after August 31, 1997. Not more than $8 million in state sales and use 
taxes may be refunded to enterprise projects designated during the biennium 
beginning September 1, 1995. 
(2) Only items of the type described in paragraph (3) of this subsection which 
are purchased by the enterprise project during the designated period or 90 days 
prior to its designation may be considered in determining the amount of refund 
available to the project. 
(3) Subject to the limitations of paragraphs (1), (2), (4), (5), and (6) of this 
subsection, a refund will be made based on state tax paid purchases of: 
(A) machinery or equipment for use in the enterprise zone in which the 
enterprise project is located; 
(B) building materials for use in constructing, rehabilitating, or remodeling a 
structure in the enterprise zone in which the enterprise project is located; 
(C) labor for remodeling, rehabilitating, or constructing a structure in an 
enterprise zone; and 
(D) electricity and natural gas purchased and consumed in the normal course of 
business in the enterprise zone. 
(4) An enterprise project is not entitled to a refund of any taxes paid by a 
contractor under a lump- sum contract unless the contractor has received 
designation as the enterprise project. 
(5) Sales and use taxes paid on taxable services are not eligible for refund. 
Taxes paid on materials purchased in conjunction with services will qualify for 
refund only when the charge for materials is separated from the charge for 
services and the amount of tax paid on materials is separated. 
(6) Subject to the limitations prescribed in this subparagraph, refunds will be 
paid directly to the project. 
(A) An enterprise project is eligible for a maximum refund of $250,000 in each 
state fiscal year. 
(i) The total amount refunded to an enterprise project may not exceed the total 
amount of state tax paid on qualifying purchases, or the amount determined by 
multiplying $250,000 by the number of state fiscal years during the designated 
period of the enterprise project, whichever is less. The refund may not exceed 
$2,000 for each job retained or each new job created for a qualified employee. 
(ii) An enterprise project that qualifies for a refund that exceeds $250,000 
during a state fiscal year may carry the excess to a subsequent year subject to 
the $250,000 limitation in each year. 
(iii) Any carry-over or other eligible refunds must be applied for no later than 
the end of the next state fiscal year that follows the fiscal year in which the 
designation as an enterprise project expires or is removed by the Texas 
Department of Economic Development. 
(B) Claims for refund must be in writing and must indicate the period for which 
the refund is claimed and must reflect the written approval of the Texas 
Department of Economic Development with respect to the number of jobs retained 
or new permanent jobs created during the period. A claim for refund may be made 
annually or semiannually. Annual claims cover the period from September-August 
of each fiscal year. Semiannual claims cover the period from September- February 
and from March-August of each fiscal year. 
(7) For refunds applied for after August 31, 1991, the following conditions 
apply: 
(A) the qualified business must maintain the same level of employment of 
qualified employees for three years as existed at the time it qualified for a 
refund; 
(B) annually, the Texas Department of Economic Development shall certify that 
the correct level of employment has been maintained; and
(C) the comptroller shall assess the qualified business that portion of the 
refund attributable to any decrease in employment, plus penalty and interest 
from the date of the refund. 
(8) An enterprise project must retain records substantiating each claim for 
refund. The records must be verifiable by audit and include copies of invoices 
showing the item purchased, the date of purchase, amount of purchase, the amount 
of tax paid, and the identity of the seller. The records must also show that the 
machinery and equipment and building materials purchased are for use within the 
zone. Employment records must also be kept verifying the number of new jobs 
created. 
(d) Defense economic readjustment zones. 
(1) Definitions applicable to subsection (d) only: 
(A) Defense readjustment project - A person designated by the Texas Department 
of Economic Development as a defense readjustment project under the Government 
Code, Title 10, Subtitle G, Chapter 2310. 
(B) Qualified business - A person certified as a qualified business under 
Government Code, sec.2310.302. 
(C) Qualified employee - A person who: 
(i) works for a qualified business; and 
(ii) performs at least 50% of the person's service for the business in the 
readjustment zone. 
(D) Readjustment zone - An area designated as a defense economic readjustment 
zone under the Government Code, Chapter 2310. 
(2) Tax refunds for defense readjustment projects.
(A) A defense readjustment project is eligible for a refund in the amount 
provided by this section of the state sales and use taxes imposed by this 
chapter on purchases of: 
(i) equipment or machinery sold to a defense readjustment project for use in a 
readjustment zone; 
(ii) building materials sold to a defense readjustment project for use in 
remodeling, rehabilitating, or constructing a structure in a readjustment zone; 
(iii) labor for remodeling, rehabilitating, or constructing a structure, not 
qualifying as a new construction, by a defense readjustment project in a 
readjustment zone; and 
(iv) electricity and natural gas purchased and consumed in the normal course of 
business in the readjustment zone. 
(B) Subject to the limitations provided by subparagraph (C) of this paragraph, a 
defense readjustment project qualifies for a refund of taxes under this section 
of $2,500 for each new permanent job or job that has been retained by the 
defense readjustment project for a qualified employee.
(C) The total amount of tax refund that a defense readjustment project may apply 
for in a state fiscal year may not exceed $250,000. If a defense readjustment 
project qualifies in a state fiscal year for a refund of taxes in an amount in 
excess of the limitation provided by this subsection, it may apply for a refund 
of those taxes in a subsequent year, subject to the $250,000 limitation for each 
year. However, a defense readjustment project may not apply for a refund under 
this section after the end of the state fiscal year immediately following the 
state fiscal year in which the defense readjustment project's designation as a 
defense readjustment project expires or is removed. The total amount that may be 
refunded to a defense readjustment project under this section may not exceed the 
amount determined by multiplying $250,000 by the number of state fiscal years 
during which the defense readjustment project created one or more jobs for 
qualified employees. 
(D) Only qualified businesses that have been certified as eligible for a tax 
refund under this section by the Texas Department of Economic Development to the 
comptroller and the Legislative Budget Board are entitled to the tax refund. 
(E) To receive a state tax refund under this section, a defense readjustment 
project must apply to the comptroller for the refund. A refund request submitted 
to the comptroller must: 
(i) be in writing in a format prescribed by the comptroller;
(ii) be accompanied by copies of the certification by the Texas Department of 
Economic Development; 
(iii) list each qualifying item purchased, the name of each seller, invoice or 
contract number, dollar amount of each purchase, and amount of state tax paid on 
each purchase. 
(F) A defense readjustment project applying for a refund of state taxes under 
this subsection must retain records substantiating each claim for refund. The 
records must be verifiable by audit and include copies of invoices showing the 
item purchased, the date of purchase, amount of purchase, the amount of tax 
paid, and the identity of the seller. The records must also show that the 
qualifying taxable items purchased were for use within the zone. Employment 
records must also be kept verifying the number of new jobs created or retained.
(G) For possible local tax abatements, see the Government Code, sec.2310.405.
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805465
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Effective date: May 10, 1998
Proposal publication date: February 20, 1998
For further information, please call: (512) 463-3699

34 TAC sec.3.364
The Comptroller of Public Accounts adopts an amendment to sec.3.364, concerning 
staff leasing services with changes to the proposed text as published in the 
January 2, 1998, issue of the Texas Register (23 TexReg 99). 
The amendment in subsection (a)(5) reflects changes made by House Bill 1465, 
75th Legislature, 1997, to the Labor Code, which regulates the staff leasing 
industry. The changes, effective September 1, 1997, delete reference to 
exceptions from license requirements for entities listed on the New York Stock 
Exchange with assets that exceed one billion dollars. 
Comments were received from Hughes & Luce, L.L.P. suggesting that the definition 
of "Staff Leasing Company" be amended to avoid the necessity of changing the 
rule with each change in the Labor Code provision concerning staff leasing 
services. The comptroller has made these suggested changes to subsection (a)(5). 
This amendment is adopted under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
The amendment implements House Bill 1465, 75th Legislature, 1997. 

sec.3.364. Staff Leasing Services.
(a) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) Assigned employee - An employee who is assigned to a client company by a 
staff leasing company, whose work is performed in this state, and as to whom the 
staff leasing company and the client company share employment responsibilities. 
The term does not include an employee or independent contractor retained or 
hired by a client company for a limited period of time to support or supplement 
a client company's workforce in a special work situation, including:
(A) an employee absence; 
(B) a temporary skill shortage; 
(C) a seasonal workload; or 
(D) a special assignment or project. 
(2) Client company - A person that contracts with a staff leasing company and is 
assigned employees by the staff leasing company under the contract. 
(3) Independent contractor - A person who contracts to perform work or provide a 
service for the benefit of another and who: 
(A) is paid by the job even when consideration is based on a time measured 
basis; 
(B) is free to hire as many helpers as the person desires and to determine what 
each helper will be paid; 
(C) is free to work for other customers, or to send helpers to work for other 
customers, while under contract to the hiring customer; and 
(D) is in control of the details of the work and the right to terminate the 
employment of its employees. 
(4) Shared employment relationship - An employment relationship among an 
assigned employee, client company, and staff leasing company in which by written 
contract and in fact the staff leasing company and client company share 
employment responsibilities. 
(5) Staff leasing company - A business that offers staff leasing services and is 
licensed under the Labor Code, Chapter 91, or a business that offers staff 
leasing services but is exempt from the licensing requirements of the Labor 
Code. 
(6) Staff leasing services - Services performed by assigned employees, together 
with personnel management services, such as employee benefit and payroll 
services, performed by the staff leasing company and related to shared 
employees, for the client company under a written contract between the staff 
leasing company and the client company that provides for a shared employment 
relationship as to the assigned employees. 
(b) Tax responsibilities of persons who perform staff leasing services. 
(1) Sales tax is not due on staff leasing services if all of the following 
conditions are met: 
(A) at least 75% of the assigned employees providing services under the staff 
leasing contract were previously employees of the client company for a period of 
at least three months immediately prior to commencement of the staff leasing 
contract; 
(B) none of the assigned employees were employed previously:
(i) by the company providing staff leasing services under the contract unless 
the previous employment was through a shared employment relationship; or 
(ii) by an entity that previously provided or currently provides taxable 
services to the client company; and 
(C) a shared employment relationship exists between the client company and the 
staff leasing company as to the assigned employees. 
(2) The following are exceptions to paragraph (1) of this subsection. 
(A) A staff leasing contract must comply only with paragraph (1)(B) and (C) of 
this subsection when the client company has been in operation for less than a 
year; provided that a client company that has been in existence less than a year 
solely due to a change in legal entity, merger, or corporate reorganization must 
meet all three conditions. In the latter situation, the combined experience of 
all entities involved in such legal change, merger, or corporate reorganization 
will be considered when applying the tests set forth in paragraph (1) of this 
subsection. 
(B) When a staff leasing company enters into a contract with a client company 
that previously was in a shared employment relationship with another staff 
leasing company immediately prior to the effective date of such new contract, 
the shared employees will be considered employees of the client company in 
meeting the requirement in paragraph (1)(A) of this subsection.
(C) A staff leasing contract that has met the qualifications in paragraph (1) of 
this subsection will not have to re-qualify if an employee assigned under the 
contract is fired or resigns and is replaced. However, a contract must re-
qualify under paragraph (1) if, within six months after it is entered into, all 
of the assigned employees or an identifiable segment of the assigned employees 
are replaced by: 
(i) employees previously employed by the staff leasing company unless the 
previous employment was through a shared employment relationship with another 
client company; or 
(ii) employees of an entity that previously provided or currently provides 
taxable services to the client company. 
(D) If the scope of an existing staff leasing contract is expanded to increase 
the volume of services of the type already provided by the staff leasing company 
by adding employees to perform the same work functions of employees already 
under the contract (e.g., another shift is added), the amended contract must 
meet the qualifications in paragraph (1)(B)(i) and (C) of this subsection. 
(E) If the scope of an existing staff leasing contract is expanded to include 
services not previously provided by the staff leasing company by adding 
employees to perform functions that are not currently performed by employees 
under the contract (e.g., employees are added to perform debt collection 
services for a client who previously had not performed those services in house), 
the amended contract must meet the qualifications in paragraph (1)(B) and (C) of 
this subsection. 
(3) The client company and the staff leasing company must sign a written 
certification that the staff leasing contract or amendments to the contract meet 
the requirements and conditions set out in this section, and both parties must 
retain a copy of the certification in their files. 
(4) If a contract does not meet the conditions for exemption set out in 
subsection (b), taxable services as defined in the Tax Code, sec.151.0101, 
performed under the contract are subject to sales tax, unless purchased for 
resale as provided in sec.3.285 of this title (relating to Sales for Resale; 
Resale Certificates). 
(5) When both nontaxable staff leasing services and taxable services are being 
performed under the same contract, the parties to the contract should separately 
identify the taxable from nontaxable services in a contract and the charges 
applicable to each. Failure to separate the charges will result in the entire 
contract being presumed to be for taxable services. Documentation that clearly 
defines the work being performed should be retained by both parties to show that 
had the nontaxable staff leasing services and taxable services been performed 
independently of each other, the cost of each would be reasonably near the 
allocation of charges. Examples of acceptable documentation include written 
contracts which detail the scope of work, bid sheets, tally sheets, payroll 
records, and job descriptions. If there is not a written contract signed by both 
parties clearly showing agreement as to the taxable and nontaxable work being 
performed, the customer and the service provider may prepare a written 
certification verifying the allocation of nontaxable staff leasing and taxable 
services. All services performed will be presumed to be taxable if the parties 
fail to provide the written certification. The comptroller may recalculate the 
charges if the allocation appears unreasonable and either party may be held 
responsible for the additional tax due. 
(c) Independent contractor. Staff leasing services do not include services 
performed by an independent contractor regardless of the status of the 
contractor as a licensed staff leasing company. 
(d) Temporary help service. For information on the taxability of services 
performed by a temporary help service, see sec.3.356 of this title (relating to 
Real Property Service). 
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805466
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Effective date: May 10, 1998
Proposal publication date: January 2, 1998
For further information, please call: (512) 463-3699

SUBCHAPTER V.Franchise Tax
34 TAC sec.3.556
The Comptroller of Public Accounts adopts an amendment to sec.3.556, concerning 
earned surplus: S corporations, with changes to the proposed text as published 
in the December 26, 1997, issue of the Texas Register (22 TexReg 12703). 
The amendment reflects changes in the franchise tax enacted by Senate Bill 861, 
75th Legislature, 1997. Subsection (b)(2) provides for an updated definition of 
the Internal Revenue Code. As a result of Internal Revenue Code changes, 
subsection (b)(3) has been amended to include a definition of Qualified 
Subchapter S Subsidiary. The remainder of subsection (b) has been renumbered 
accordingly. A new subsection (g) has been added to address the computation of 
earned surplus for a Qualified Subchapter S Subsidiary (QSSS) and its parent S 
corporation, as a result of Internal Revenue Code changes. 
Comments were received from Practitioners Publishing Company suggesting a 
clarification in subsection (g)(2), stating that a QSSS will be treated as an S 
Corporation for earned surplus computation purposes. The comptroller has added 
language to subsection (g)(2). 
Subsection (e) was revised for clarity. 
This amendment is adopted under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
The amendment implements the Tax Code, sec.171.001 et. seq. 

sec.3.556.Earned Surplus: S Corporations.
(a) The provisions of this section apply to franchise tax reports originally due 
after January 1, 1992. 
(b) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) C corporation-A corporation defined in Internal Revenue Code, 
sec.1361(a)(2). 
(2) Internal Revenue Code- 
(A) For reports originally due on or after January 1,1998, the Internal Revenue 
Code (IRC) of 1986 in effect for the tax year beginning on or after January 1, 
1996, and before January 1, 1997. 
(B) For reports originally due on or after January 1, 1996, and before January 
1, 1998, the Internal Revenue Code of 1986 in effect for the tax year beginning 
on or after January 1, 1994, and before January 1, 1995. 
(C) For reports originally due on or after January 1, 1992, and before January 
1, 1996, the Internal Revenue Code of 1986 in effect for the tax year beginning 
on or after January 1, 1990, and before January 1, 1991 (1990 IRC). 
(D) The franchise tax law requires that the 1990 IRC be used for reports 
originally due prior to January 1, 1996. Because of this requirement, there may 
be differences between federal taxable income reported for federal income tax 
purposes and reportable federal taxable income for franchise tax purposes for 
franchise tax reports originally due prior to 1996. To the extent that such 
differences exist, the 1990 IRC must be used to report the differences for 
reports originally due on or after January 1, 1996. For example, if a 
corporation was denied any portion of an IRC sec.179 deduction on an asset in 
computing taxable earned surplus on a franchise tax report due prior to January 
1, 1996 (because the sec.179 deduction exceeded the $10,000 limit allowed under 
the 1990 IRC), the corporation will be allowed to compute depreciation on the 
asset based on the 1990 IRC (i.e., the corporation may depreciate the asset 
based on the $10,000 sec.179 deduction allowed under the 1990 IRC) for reports 
originally due on or after January 1, 1996. 
(3) Qualified Subchapter S Subsidiary-A corporation as described in the Internal 
Revenue Code, sec.1361(b)(3)(B). 
(4) S corporation-A corporation as described in the Internal Revenue Code, 
sec.1361. 
(5) Tax reporting period-For the purposes of this section, the period upon which 
the tax is based under the Tax Code, sec.171.1532 or sec.171.0011. 
(c) A corporation shall be treated as an S corporation to the extent the 
corporation qualifies for such treatment during the tax reporting period. See 
sec.3.558 of this title (relating to Earned Surplus: Officer and Director 
Compensation) regarding compensation used in computing earned surplus of an S 
corporation. 
(d) Where and to the extent an S corporation allocates income and deductions to 
shareholders, such items will be treated as income and deductions of the S 
corporation as though the corporation were taxed as a C corporation for federal 
income tax purposes. 
(1) Federal income tax requirements or limitations imposed on the S corporation 
apply for the purposes of this section. 
(2) Unless otherwise provided, federal income tax limitations or other 
restrictions imposed on the shareholders of the S corporation with regard to 
claiming losses, deductions, and other items are ignored in determining taxable 
earned surplus of the S corporation. 
(e) Treatment of specific items reported to S corporation shareholders in 
computing reportable federal taxable income. 
(1) No deduction or reduction is allowed for excess net passive income tax, 
built-in gains taxes, capital gains taxes, the federal tax on fuels, or similar 
taxes imposed on the S corporation. 
(2) Ordinary income from trade or business activities is included while ordinary 
losses from such activities are deducted. 
(3) Net income from rental activities is included and net losses are deducted. 
(4) Dividend income received by an S corporation is included except for: 
(A) amounts reportable under the Internal Revenue Code, sec.78 or sec.sec.951-
964; 
(B) dividends from a subsidiary, associate, or affiliate that does not transact 
a substantial portion of its business in the United States. If 80% or more of a 
corporate payor's gross receipts (as computed for earned surplus) are 
attributable to business outside the United States, the corporate payor is not 
doing a substantial portion of its business within the United States. The 
payor's gross receipts are measured based on the period upon which the 
recipient's tax is based under the Tax Code, sec.171.0011 or sec.171.1532;
(C) dividends from a subsidiary, associate, or affiliate that does not maintain 
a substantial portion of its assets in the United States. If 80% or more of a 
corporate payor's tangible assets (based on original cost) are situated outside 
the United States, the corporate payor does not maintain a substantial portion 
of its assets within the United States. The payor's assets are valued at the end 
of the tax reporting period upon which the recipient's tax is based under the 
Tax Code, sec.171.0011 orsec.171.1532; and 
(D) dividends which qualify for exclusion under the provisions of sec.3.555(k) 
of this title (relating to Earned Surplus: Computation).
(5) Royalty income is included. 
(6) Taxable interest is included unless the interest qualifies for exclusion 
under the provisions of sec.3.555(k) of this title (relating to Earned Surplus: 
Computation). Interest income which is exempt from federal income taxes is not 
included and expenses related to such income are not deductible in computing 
reportable federal taxable income. 
(7) Salaries and wages used in computing ordinary income or loss are allowed in 
computing reportable federal taxable income after reduction for any jobs credit 
claimed on the federal income tax return for the S corporation. Other expenses 
which are reduced for credits claimed on the return similarly are allowed net of 
such credits. 
(8) Deductions for charitable contributions are allowed.
(9) Capital losses in excess of capital gains may be deducted. 
(10) If deductions for oil and gas depletion or intangible drilling costs are 
allowed to shareholders of an S corporation rather than to the entity itself, 
the S corporation must compute such deductions as though the entity were taxed 
as a C corporation for federal income tax purposes.
(11) The corporation is allowed to deduct Internal Revenue Code, sec.179, 
amounts reported to shareholders subject to limitations imposed on the S 
corporation at the corporate level. 
(12) An S corporation may deduct foreign income taxes reported to shareholders 
unless the taxes are otherwise deducted in computing taxable items reported to 
shareholders. 
(13) The corporation is not allowed to deduct amounts reported to shareholders 
which are personal in nature even though such items may qualify as itemized 
deductions on the shareholder's income tax return.
(f) Unless otherwise provided under the Tax Code, sec.171, this section, or the 
rules applicable to the Tax Code, sec.171, S corporations are treated the same 
as any other corporation in computing earned surplus.
(g) Qualified Subchapter S Subsidiary (QSSS) - 
(1) A QSSS may not file a consolidated or combined franchise tax report with its 
parent S corporation. 
(2) Except as otherwise provided in this paragraph, the earned surplus of the 
QSSS and parent S corporation will be computed as though the parent S 
corporation and QSSS had filed separate S corporation returns for federal income 
tax purposes. That is, the QSSS will be treated as an S corporation for earned 
surplus computation purposes. For example, sales between the parent S 
corporation and QSSS must be used in computing earned surplus even though the 
parent S corporation and QSSS are treated as one corporation for federal income 
tax purposes. 
(3) The parent S corporation's share of the items of income or loss of the QSSS 
is not included in the parent S corporation's taxable earned surplus or gross 
receipts to the extent the items would be reportable by the QSSS if a separate S 
corporation return were filed. 
(4) Distributions from the QSSS to the parent S corporation will not be included 
in taxable earned surplus or receipts of the parent S corporation if such 
amounts would be excluded from reportable federal taxable income of the parent S 
corporation if the QSSS was an S corporation (not qualifying as a QSSS) and the 
parent S corporation were an individual shareholder in that corporation. 
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.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805219
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Effective date: May 4, 1998
Proposal publication date: December 26, 1997
For further information, please call: (512) 463-4062

34 TAC sec.3.562
The Comptroller of Public Accounts adopts an amendment to sec.3.562, concerning 
limited liability companies, with changes to the proposed text as published in 
the December 26, 1997, issue of the Texas Register (22 TexReg 12705). 
The amendment reflects changes in the franchise tax enacted by Senate Bill 861, 
75th Legislature, 1997, and recent changes in regulations issued by the Internal 
Revenue Service regarding the classification of business entities for federal 
income tax purposes. 
Subsection (b)(2) provides for an updated definition of the Internal Revenue 
Code. Subsection (g) of the prior rule was deleted. Subsections (f), (g), and 
(h) of the proposed rule have been added to provide for the computation of 
reportable federal taxable income for limited liability companies treated as 
sole proprietorships, divisions or branches of corporations, and corporations 
respectively for federal income tax purposes. The remaining subsections have 
been renumbered accordingly. 
Subsection (j) of the proposed rule (subsection (h) of the prior rule) has been 
amended to address the treatment of the distributive share of income and 
distributions from limited liability companies which are treated as a division 
or branch of a corporation for federal income tax purposes. Subsection (h)(3) 
has been added to provide a definition for a corporate member of a limited 
liability company. 
Subsection (e)(4) has been revised for clarification purposes. 
No comments were received regarding adoption of the amendment. 
This amendment is adopted under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
The amendment implements the Tax Code, sec.171.001 et. seq. 

sec.3.562. Limited Liability Companies.
(a) Effective date. The provisions of this section apply to franchise tax 
reports originally due on or after August 26, 1991. 
(b) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) Limited liability company-A company organized and existing under the 
provisions of the Texas Limited Liability Company Act or a foreign limited 
liability company described in the Act, Article 1.02 A(9). 
(2) Internal Revenue Code- 
(A) For reports originally due on or after January 1,1998, the Internal Revenue 
Code (IRC) of 1986 in effect for the tax year beginning on or after January 1, 
1996, and before January 1, 1997. 
(B) For reports originally due on or after January 1, 1996, and before January 
1, 1998, the Internal Revenue Code of 1986 in effect for the tax year beginning 
on or after January 1, 1994, and before January 1, 1995. 
(C) For reports originally due on or after January 1, 1992, and before January 
1, 1996, the Internal Revenue Code of 1986 in effect for the tax year beginning 
on or after January 1, 1990, and before January 1, 1991 (1990 IRC). 
(D) The franchise tax law requires that the 1990 IRC be used for reports 
originally due prior to January 1, 1996. Because of this requirement, there may 
be differences between federal taxable income reported for federal income tax 
purposes and reportable federal taxable income for franchise tax purposes for 
franchise tax reports originally due prior to 1996. To the extent that such 
differences exist, the 1990 IRC must be used to report the differences for 
reports originally due on or after January 1, 1996. For example, if a 
corporation was denied any portion of an IRC sec.179 deduction on an asset in 
computing taxable earned surplus on a franchise tax report due prior to January 
1, 1996 (because the sec.179 deduction exceeded the $10,000 limit allowed under 
the 1990 IRC), the corporation will be allowed to compute depreciation on the 
asset based on the 1990 IRC (i.e., the corporation may depreciate the asset 
based on the $10,000 sec.179 deduction allowed under the 1990 IRC) for reports 
originally due on or after January 1, 1996. 
(3) C corporation-A corporation defined in Internal Revenue Code, 
sec.1361(a)(2). 
(4) Tax reporting period-For the purposes of this section, the period upon which 
the tax is based under the Tax Code, sec.171.1532 or sec.171.0011. 
(c) Taxable capital. To determine the taxable capital of a limited liability 
company, add the company's members' contributions, as provided for under the 
Texas Limited Liability Company Act, and surplus. 
(1) The Texas Limited Liability Company Act, Article 5.01A, provides that the 
contribution of a member may be in cash, property or services rendered, or a 
promissory note or other obligation to pay cash or transfer property to the 
limited liability company. 
(2) A member's contribution is the sum of the cash contributed and the agreed 
value of any other contribution made plus the amount of cash and the agreed 
value of any other contribution which the member has agreed to make in the 
future as an additional contribution, provided that the promise by a member to 
make a contribution to, or otherwise pay cash or transfer property to, the 
limited liability company is set out in writing and signed by the member. 
(d) Earned surplus. Where and to the extent a limited liability company 
allocates income and deductions to its members for federal income tax, such 
items will be treated as income and deductions in determining earned surplus of 
the limited liability company as though it were taxed as a C corporation for 
federal income tax purposes. 
(l) Federal income tax requirements or limitations imposed on the limited 
liability company apply for purposes of this section. 
(2) Unless otherwise provided, federal income tax limitations or other 
restrictions imposed on the members of the limited liability company with regard 
to claiming losses, deductions, and other items are ignored in determining 
taxable earned surplus of the limited liability company. 
(e) Limited liability company treated as partnership for federal income tax 
purposes. Treatment of specific items reported to limited liability company 
members in computing reportable federal taxable income for earned surplus 
purposes. 
(1) Ordinary income from trade or business activities is included and ordinary 
losses from such activities are deducted. 
(2) Net income from rental activities is included and net losses are deducted. 
(3) Taxable interest is included unless the interest qualifies for exclusion 
under the provisions of sec.3.555(k) of this title (relating to Earned Surplus: 
Computation). Interest income which is exempt from federal income tax is 
excluded and expenses related to such income are not deductible in computing 
reportable federal taxable income. 
(4) Dividend income received by a limited liability company is included except 
for: 
(A) amounts reportable under the Internal Revenue Code, sec.78 or sec.sec.951-
964; 
(B) dividends from a subsidiary, associate, or affiliate that does not transact 
a substantial portion of its business in the United States. If 80% or more of a 
corporate payor's gross receipts (as computed for earned surplus) are 
attributable to business outside the United States, the corporate payor is not 
doing a substantial portion of its business within the United States. The 
payor's gross receipts are measured based on the period upon which the 
recipient's tax is based under the Tax Code, sec.171.0011 or sec.171.1532;
(C) dividends from a subsidiary, associate, or affiliate that does not maintain 
a substantial portion of its assets in the United States. If 80% or more of a 
corporate payor's tangible assets (based on original cost) are situated outside 
the United States, the corporate payor does not maintain a substantial portion 
of its assets within the United States. The payor's assets are valued at the end 
of the tax reporting period upon which the recipient's tax is based under the 
Tax Code, sec.171.0011 or sec.171.1532; and 
(D) dividends which qualify for exclusion under the provisions of sec.3.555(k) 
of this title (relating to Earned Surplus: Computation).
(5) Royalty income is included. 
(6) Payments made to members which qualify as guaranteed payments under Internal 
Revenue Code, sec.707(c), and which constitute ordinary and necessary business 
expenses under Internal Revenue Code, sec.162, but are not subject to Internal 
Revenue Code, sec.263, are deductible. 
(7) Salaries and wages used in computing ordinary income or loss are allowed in 
computing reportable federal taxable income after deduction for any jobs credit 
claimed on the limited liability company federal income tax return. Other 
expenses which are reduced for credits claimed on the federal income tax return 
similarly are allowed net of such credits. 
(8) Deductions for charitable contributions are allowed.
(9) Capital losses in excess of capital gains are deductible.
(10) If deductions for oil and gas depletion or intangible drilling costs are 
allowable to members of a limited liability company rather than to the entity 
itself, the limited liability company must compute such deductions as though the 
entity were taxed as a C corporation for federal income tax purposes. 
(11) The limited liability company is allowed to deduct Internal Revenue Code, 
sec.179, amounts reported to members, subject to limitations imposed on the 
limited liability company as if it were taxed as a C corporation. 
(12) A limited liability company may deduct foreign income taxes reported to 
members unless the taxes are otherwise deducted in computing taxable items 
reported to members. 
(13) No deduction is allowed for amounts reported to members which are personal 
expenses even though such items may qualify as itemized deductions on the 
member's income tax return. 
(f) Limited liability company treated as sole proprietorship for federal income 
tax purposes. 
(1) The reportable federal taxable income of the limited liability company will 
be the taxable income and deductions reported on the sole proprietor's 
individual income tax return, including any schedules and attachments to the 
sole proprietor's income tax return that relates to the limited liability 
company. 
(2) The limited liability company may not deduct any amounts for compensation of 
the member who is treated as the sole proprietor for federal income tax 
purposes. 
(g) Single member limited liability company which is treated as a division or 
branch of a corporation for federal income tax purposes. The reportable federal 
taxable income of the limited liability company will be computed as though the 
limited liability company were a separate corporation for federal income tax 
purposes. Therefore, the reportable federal taxable income will be computed 
under the provisions of Texas Tax Code sec.171.110(d).
(h) Limited liability company treated as corporation for federal income tax 
purposes. The reportable federal taxable income of the limited liability company 
will be computed under the provisions of Texas Tax Code sec.171.110(d) as if the 
limited liability company were a corporation. 
(i) Officer and director compensation. See sec.3.558 of this title (relating to 
Earned Surplus: Officer and Director Compensation) regarding compensation used 
in computing earned surplus of a limited liability company. 
(j) Corporate members of limited liability companies. 
(1) Taxable capital. 
(A) A corporate member of a limited liability company must use the cost method 
of accounting for its investment in the limited liability company. 
(B) Cost is the original valuation of the investment under Generally Accepted 
Accounting Principles. There will be no adjustment for the member's distributive 
share of the limited liability company's items of income or loss as reported 
annually by the limited liability company. The cost of an investee (limited 
liability company) will be reduced by distributions and/or withdrawals from the 
investee insofar as such distributions represent a return of capital. 
(C) To the extent a distribution and/or withdrawal from the limited liability 
company is made up of current or previous undistributed earnings of the limited 
liability company and not a return of capital, it is included in gross receipts 
for taxable capital of the receiving corporate member. These distributions 
and/or withdrawals are apportioned based on the state of organization of the 
payor (limited liability company). 
(2) Earned surplus. 
(A) For the portion of a tax reporting period during which a limited liability 
company is treated for federal income tax purposes as described in subsection 
(e) or (g) of this section, a corporate member's distributive share of a limited 
liability company's items of income or loss is not included in the member's 
earned surplus or gross receipts for earned surplus to the extent the items 
would have been reported at the limited liability company level in accordance 
with the requirements of subsection (e) or (g) of this section. The amounts 
excluded are limited to the amounts otherwise included in taxable earned surplus 
of the corporate member. 
(B) Distributions and/or withdrawals from a limited liability company described 
in subparagraph (A) of this paragraph are not included in earned surplus and are 
not considered gross receipts for apportionment purposes of the corporate member 
unless a gain is recognized by the corporate member for federal income tax 
purposes. These distributions and/or withdrawals are apportioned based on the 
state of organization of the payor (limited liability company). 
(3) For the purposes of the subsection, a corporate member includes a 
corporation as defined in the Tax Code, sec.171.001(b)(3).
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.
Filed with the Office of the Secretary of State on April 14, 1998.
TRD-9805220
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Effective date: May 4, 1998
Proposal publication date: December 26, 1997
For further information, please call: (512) 463-4062

CHAPTER 9.Property Tax Administration
SUBCHAPTER C.Appraisal District Administration
34 TAC sec.9.415
The Comptroller of Public Accounts adopts an amendment to sec.9.415, concerning 
applications for property tax exemptions, without changes to the proposed text 
as published in the March 13, 1998, issue of the Texas Register (23 TexReg 
2746). 
This rule is being amended to add a new model form for application for water 
conservation initiatives property tax exemption from Senate Joint Resolution 45, 
75th Legislature, 1997, effective January 1, 1998. 
No comments were received regarding adoption of the amended section. 
This amendment is adopted under the Tax Code, sec.11.43(f), which requires the 
comptroller to prescribe the contents and form for each kind of property tax 
exemption. 
The amendment implements the Tax Code, sec.sec.11.111, 11.13, 11.17, 11.18, 
11.181, 11.19, 11.20, 11.21, 11.22, 11.23(a)-(k), 11.24, 11.251, 11.27, 11.271, 
11.28, 11.29, 11.30, 11.31, 11.32, 11.437, and 11.182. 
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.
Filed with the Office of the Secretary of State on April 14, 1998.
TRD-9805228
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Effective date: May 4, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 463-3699

TITLE 37. PUBLIC SAFETY AND CORRECTIONS
PART I. Texas Department of Public Safety
CHAPTER 15.Drivers License Rules
SUBCHAPTER G.Denial of Renewal of Driver's License for Failure to Appear for 
Traffic Violation
37 TAC sec.sec.15.111, 15.119, 15.120
The Texas Department of Public Safety adopts amendments to sec.sec.15.111, 
15.119, and 15.120, concerning denial of renewal of driver's license for failure 
to appear for a traffic citation, without changes to the proposed text as 
published in the March 13, 1998, issue of the Texas Register (23 TexReg 2748). 
The justification for the amendments will be an increased level of compliance by 
traffic violators in their obligation to appear at a hearing. 
The amendments will clarify when a $30 administrative fee shall be required (or 
when the fee may be waived) pursuant to Texas Transportation Code, sec.706.006. 
Texas Transportation Code, Chapter 706, authorizes the department to deny 
renewal of a driver license to an applicant who has failed to appear for a 
hearing on a traffic violation (FTA violator), when certain statutory criteria 
are satisfied. 
Amendment to sec.15.111 reflects the non-substantive changes in statute from 
Texas Civil Statutes to Texas Transportation Code. 
To clear the denial, an FTA violator must pay a fee of $30 to the court where 
the traffic citation is pending, in addition to any other fines or costs 
assessed by the court. However, under certain circumstances, a court may issue a 
clearance report without requiring the $30 fee. A fee shall not be required when 
the person has been acquitted of the underlying traffic offense. The amendment 
to sec.15.119 more clearly defines "acquittal." The court may also waive the fee 
if the court finds that the person had good cause for having originally failed 
to appear. The amendment describes or defines "good cause." The amendment to 
sec.15.120 clarifies that a person who sets or resets a case, or posts security 
for a case for which he or she earlier failed to appear is nevertheless required 
to pay the $30 administrative fee in order to qualify for an FTA clearance 
report. The amendment would also better distinguish between a civil FTA 
violation report submitted to the department and a criminal failure to appear 
charge, by deleting language which refers to a warrant of arrest. 
No comments were received regarding adoption of the amendments. 
The amendments are adopted pursuant to Texas Transportation Code, sec.706.012, 
which authorizes the department to adopt rules to implement this chapter; and 
pursuant to Texas Government Code, sec.411.006(4), which authorizes the director 
of the Department of Public Safety to adopt rules, subject to approval of the 
Public Safety Commission, considered necessary for the control of the 
Department. 
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.
Filed with the Office of the Secretary of State on April 17, 1998.
TRD-9805416
Dudley M. Thomas
Director
Texas Department of Public Safety
Effective date: May 7, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 424-2890

TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART XX. Texas Workforce Commission
CHAPTER 823.General Hearings
The Texas Workforce Commission (Commission) adopts new sec.sec.823.1-823.3, 
823.11-823.15, 823.31-823.34, and 823.41-823.44 concerning a general hearing 
process for the Commission. Sections 823.1, 823.2, 823.12-823.15, 823.31-823.33, 
and 823.42-823.44 with non-substantive changes to the proposed text as published 
in the January 16, 1998, issue of the Texas Register (23 TexReg 415). Sections 
823.3, 823.11, 823.34 and 823.41 are adopted without changes and will not be 
republished.
New Chapter 823 concerning General Hearings is adopted as the location of the 
new rules. 
The new rules will govern administrative programs of the Commission including 
but not limited to Child Care, Proprietary Schools and Welfare-to Work program 
hearings. This hearing process specifically does not apply to programs that are 
governed by hearing procedures provided for by statutes or rules promulgated 
under Texas Administrative Code, Title 40, Part XX, Chapters 805 (JTPA) and 815 
(Unemployment and Labor Law). The new rules set forth the hearing procedures to 
meet federal and state fair hearing requirements within the purview of the 
Commission as required by provisions such as 40 U.S.C. sec.602(a)(4) and 7 
U.S.C. sec.2020(e)(10) as currently worded and as may be amended. New Subchapter 
A relating to General Provisions, Subchapter B relating to Pre-hearing, 
Subchapter C relating to Conduct of Hearing, and Subchapter D relating to 
Decision, Non-appearance, and Rehearing are adopted as the location for the 
rules. 
New sec.823.1, sets forth the short title and purpose of Chapter 823.
New sec.823.2, sets forth the definitions that apply to Chapter 823.
New sec.823.3, sets forth the information on rights of appeal regarding Chapter 
823. 
New sec.823.11, provides for the procedure for requesting a hearing 
New sec.823.12, provides for the procedure for setting of a hearing.
New sec.823.13, sets out the procedure and grounds for a postponement.
New sec.823.14, sets out the procedure regarding evidence to be used at the 
hearings. 
New sec.823.15, sets out the grounds and procedures for hearing officer 
disqualification and withdrawal. 
New sec.823.31, provides for the general hearing procedure. 
New sec.823.32, sets out the procedures for continuance of a hearing.
New sec.823.33, sets out the procedures for withdrawal of an appeal.
New sec.823.34, provides for a change in the determination. 
New sec.sec.823.41 - 823.43, detail the procedure regarding hearing decisions, 
reopened decisions for non-appearance and rehearing decisions respectively.
New sec.823.44 sets out the provisions regarding finality of decisions.
The Commission received no external public comments on the proposed procedures, 
but agency staff provided additional comments, which are reflected in the non-
substantive changes. 
The text of the new rules includes the following non-substantive changes to the 
text of the proposed rules. 
In sec.823.1, the following language is added for clarity: " . . . matters 
involving denial of benefits administered through the Texas Department of Human 
Services." 
In sec.823.2, the definition of "Date of notice" was deleted and replaced with: 
"The date mailed, except for proprietary schools which is from the date 
received, unless good cause exists for the hearing officer to determine 
otherwise." This will provide consistency to the process and standardize its 
administration. The definition of "Date of request of hearing" is clarified to 
reflect that this pertained to delivery by hand and facsimile. The definitions 
are numbered pursuant to the new requirements of the Texas Register In 
sec.823.12, "hearing officer" is replaced with "Commission," "issue" is replaced 
with "mail," and "appellant requests a hearing in person" is replaced by 
"Commission determines an in-person hearing is necessary" for clarity and more 
flexibility with respect to the occasional need for in-person hearings.
In sec.823.13, "either" is replaced with "a" for clarity since there may be 
proceedings involving more than two parties. 
In sec.823.14, the word "a" replaces "the" to show general applicability, "the 
opposing side" is replaced with "all parties," to clarify that there may be more 
than two parties in a hearing, "stipulate" is replaced with "agree," and the 
language "on its own motion or" is added for purposes of clarity. Subsection (f) 
was changed to provide that the hearing officer will distribute the oral or 
written information to all parties. 
In sec.823.15, the second sentence in subsection (b) is replaced with "Upon 
withdrawal, the Commission will select an alternate hearing officer." This 
clarifies the process and deletes unnecessary language. 
In sec.823.31(a), "may impartially assist the parties in effective presentation 
of" is removed and replaced with "shall develop the evidence. In 
sec.823.31(a)(1), the plural "parties" is changed to singular "party" for 
consistency within the paragraph. In sec.823.31(a)(2), "party" is replaced with 
"parties" for clarity. 
In sec.823.32, "a collateral source" is changed to "additional sources" to 
simplify the terminology. 
In sec.823.33, the words "received by the Commission," "request for a " and 
"the" are added for purposes of clarity. The language "unless otherwise provided 
in the determination" is added as some determinations may require the withdrawal 
be sent to Special Hearings or other appeals departments. 
In sec.823.42, "of" is deleted and "is mailed" is added as the request to reopen 
has been tied to the date the decision is mailed as opposed to the date of the 
decision. 
In sec.823.43, "hearing" is added for clarity. 
In sec.823.44, "forty days" was changed to "thirty days" for consistency with 
the timeline for the motion for rehearing. 

SUBCHAPTER A.General Provisions
40 TAC sec.sec.823.1-823.3
The new rules are adopted under Texas Labor Code, sec.301.061 and sec.302.002, 
which provides the Texas Workforce Commission with the authority to adopt, 
amend, or repeal such rules as it deems necessary for the effective 
administration of Texas Workforce Commission programs; Texas Human Resources 
Code, sec.sec.31.012, 31.0125, 44.002(a) and 44.035(d) which provides the Texas 
Workforce Commission with authority to adopt rules to carry out the respective 
chapters; and Texas Education Code, sec.132.023 , which provides the Commission 
with the authority to adopt such rules as necessary for carrying out Chapter 
132.

sec.823.1.Short Title and Purpose.
(a) This chapter provides a hearing process to the extent authorized by federal 
and state law and rules administered by the Commission.
(b) This chapter shall not pertain to review of determinations regarding: 
(1) across-the-board reductions of services, benefits or assistance to a class 
of recipients; 
(2) matters governed by Texas Labor Code, Title 2, Subtitle B, Restrictions on 
Labor and Subtitle C, Wages; 
(3) matters governed by Texas Labor Code, Title 4, Subtitle A, Texas 
Unemployment Compensation Act; 
(4) all programs funded in all or in part with monies allocated under the Job 
Training Partnership Act, 29 U.S.C. 1501 et seq.; and 
(5) matters governed by hearing procedures otherwise provided for within 40 TAC 
Part XX, Texas Workforce Commission. 
(6) matters involving denial of benefits administered through the Texas 
Department of Human Services.

sec.823.2.Definitions.
The following words and terms, when used in this chapter, have the following 
meanings, unless the context clearly indicates otherwise. 
(1) Appellant - The party or the party's authorized hearing representative who 
files an appeal from an appealable determination or decision.
(2) Commission - The Texas Workforce Commission. 
(3) Date of notice - The date mailed, except for proprietary schools which is 
from the date received, unless good cause exists for the hearing officer to 
determine otherwise. 
(4) Date of request of hearing -- The date on which the appellant or the hearing 
representative filed a written notice of appeal with the contractor or 
Commission by hand delivery, facsimile or mail. If an appeal is mailed to the 
contractor or Commission, then the appeal is perfected as of the postmark date 
on the envelope containing the appeal request unless good cause exists for the 
hearing officer to determine otherwise. If an appeal is delivered by hand or 
facsimile after 5 p.m., the date of request shall be the next day. 
(5) Hearing -- A hearing is an informal, orderly, and readily available 
proceeding held before an impartial hearing officer. At the hearing, a party or 
hearing representative may present evidence to show that the determination 
should be reversed, affirmed or modified. 
(6) Hearing officer -- A hearing officer is a Commission employee designated to 
conduct fair hearings and issue final administrative decisions. 
(7) Party -- The person or entity, with the right to participate in a hearing 
authorized in applicable statute or rule. 
(8) Proprietary school appeal -- An appeal pursuant to Texas Education Code, 
Chapter 132, Subchapter D relating to Proprietary Schools.
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.
Filed with the Office of the Secretary of State on April 18, 1998.
TRD-9805402
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: May 8, 1998
Proposal publication date: January 16, 1998
For further information, please call: (512) 463-8812

SUBCHAPTER B.Pre-Hearing Procedure
40 TAC sec.sec.823.11-823.15
The new rules are adopted under Texas Labor Code, sec.301.061 and sec.302.002, 
which provides the Texas Workforce Commission with the authority to adopt, 
amend, or repeal such rules as it deems necessary for the effective 
administration of Texas Workforce Commission programs; Texas Human Resources 
Code, sec.sec.31.012, 31.0125, 44.002(a) and 44.035(d) which provides the Texas 
Workforce Commission with authority to adopt rules to carry out the respective 
chapters; and Texas Education Code, sec.132.023, which provides the Commission 
with the authority to adopt such rules as necessary for carrying out Chapter 
132. 

sec.823.12.Setting of Hearing.
(a) After the Commission receives the request for hearing, the Commission will 
mail within thirty days a notice of hearing, which sets the hearing for a 
reasonable time and place. In proprietary school appeals the hearing shall be 
held within thirty days from the receipt of the request for an appeal. 
(b) The notice of hearing must be in writing and include a statement of the 
time, place, and nature of the hearing; a statement of the legal authority under 
which the hearing is to be held; and a short and plain statement of the matters 
asserted and to be proved. 
(c) The notice of hearing must be sent to the requesting party at least ten days 
before the date of the hearing unless a shorter period is permitted by statute. 
(d) The hearing notice will also contain a statement of whether the hearing will 
be conducted by telephone or the location of the in-person hearing. 
(e) Hearings will be conducted by telephonic means, unless the Commission 
determines an in-person hearing is necessary, except in proprietary school 
appeals where hearings are conducted in person in Austin unless the parties 
agree to a telephonic hearing and/or a different location. 

sec.823.13.Postponement.
The hearing officer may grant a postponement of a hearing for good cause at a 
party's request. Except in emergencies or unusual circumstances confirmed by a 
telephone call or other means, no postponements may be granted within two days 
of the scheduled hearing. 

sec.823.14.Evidence.
(a) Evidence Generally. The parties are not bound by technical rules of 
evidence. Evidence will be admitted and given probative effect if it possesses 
probative value and is relevant as determined by the hearing officer. 
(b) Exchange of Documentary Evidence. Any documentary evidence to be presented 
during a telephonic hearing shall be exchanged with all parties with a copy to 
the Commission in advance of the hearing. Any documentary evidence to be 
presented at an in-person hearing shall be exchanged at the hearing. A party has 
the right to review, upon request, any documentary materials submitted to or by 
the hearing officer. 
(c) Stipulations. The parties to an appeal, with the consent of the hearing 
officer, may agree in writing to the facts involved. The hearing officer may 
decide the appeal based on such stipulation or, in the hearing officer's 
discretion, may set the appeal for hearing and take such further evidence as is 
deemed necessary for determining the appeal. 
(d) Discovery. The hearing officer may order other forms of discovery deemed 
appropriate. 
(e) Experts and Evaluations. The hearing officer may order, its own motion or at 
a party's request and expense, if relevant and useful, an independent expert or 
a professional evaluation from a source satisfactory to the parties and the 
Commission. 
(f) Ex parte communications. Private (ex parte) communications of information, 
whether oral or written, about the substantive issues of the appeal are allowed 
only if the substance is shared with all parties to the appeal. The hearing 
officer will provide all parties with the oral or written information. 
(g) Confidential information. Statutorily confidential information shall be 
protected in accordance with state and federal law. 

sec.823.15.Hearing Officer Disqualification and Withdrawal.
(a) Disqualification. A hearing officer is disqualified if the hearing officer 
directly participated in the determination under review. The hearing officer 
participated if the hearing officer: 
(1) reviewed either the file or a summary of it to assist in making the 
determination; or 
(2) has a personal interest in the outcome of the appeal decision. 
(b) Withdrawal. The hearing officer may withdraw from a hearing to avoid the 
appearance of impropriety or partiality. Upon withdrawal, the Commission will 
select an alternate hearing officer. 
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.
Filed with the Office of the Secretary of State on April 18, 1998.
TRD-9805403
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: May 8, 1998
Proposal publication date: January 16, 1998
For further information, please call: (512) 463-8812

SUBCHAPTER C.Conduct of Hearing
40 TAC sec.sec.823.31-823.34
The new rules are adopted under Texas Labor Code, sec.301.061 and sec.302.002, 
which provides the Texas Workforce Commission with the authority to adopt, 
amend, or repeal such rules as it deems necessary for the effective 
administration of Texas Workforce Commission programs; Texas Human Resources 
Code, sec.sec.31.012, 31.0125, 44.002(a) and 44.035(d) which provides the Texas 
Workforce Commission with authority to adopt rules to carry out the respective 
chapters; and Texas Education Code, sec.132.023, which provides the Commission 
with the authority to adopt such rules as necessary for carrying out Chapter 
132. 

sec.823.31.Hearing Procedure.
(a) General Procedure. All hearings shall be conducted informally and in such 
manner as to ascertain the substantial rights of the parties. The hearing 
officer shall develop the evidence. All issues relevant to the appeal shall be 
considered and addressed. 
(1) Presentation of Evidence. When a party appears, the hearing officer shall 
place the party and any witnesses under oath, examine such party and the party's 
witnesses, if any, and allow presentation of witnesses and other evidence by 
each party as may be pertinent. If during the proceeding, the hearing officer 
determines that an in-person hearing is necessary to present the evidence, a 
continuance shall be issued until such time as needed to set the in-person 
hearing. 
(2) Cross-Examination. The parties, witnesses and evidence are subject to cross-
examination by the other parties or the hearing officer. A party has the right 
to object to and confront evidence offered at hearing by the hearing officer or 
the other parties. 
(3) Additional Evidence. The hearing officer, with or without notice to any of 
the parties, may request, receive and enter into the record such additional 
evidence as necessary for a full and fair hearing on the matter, provided that a 
party shall be given an opportunity to rebut such evidence if it is to be used 
against the party's interest. 
(b) Hearing Representative. Each party may authorize a hearing representative to 
assist in presenting the appeal of the party under this chapter relating to 
General Hearings. A hearing representative is any individual authorized by a 
party who assists the party in presenting their appeal. A legal counsel, 
relative, friend, or other spokesperson may serve as a hearing representative to 
the extent permitted by law. 
(c) Records. 
(1) The hearing shall be tape-recorded and the hearing record will include the 
audiotape of the proceeding and any relevant evidence relied on by the hearing 
officer in reaching the decision, including any electronic printouts. 
(A) A party may request a copy of the audio-taped hearing at no cost. 
(B) A party requesting a transcript of a proceeding must pay the cost of 
transcription. 
(2) The hearing record must be maintained as long as required by the federal or 
state law affecting the matter appealed. 

sec.823.32.Continuance of Hearing.
(a) A continuance of a hearing may be ordered at the discretion of the hearing 
officer if: 
(1) there is insufficient evidence upon which to make a decision;
(2) a party needs additional time to examine evidence presented at the hearing; 
(3) the hearing officer considers it necessary to consult additional sources for 
information or testimony; 
(4) an in-person hearing needs to be scheduled for proper presentation of the 
evidence; or 
(5) any other reason deemed appropriate by the hearing officer. 
(b) The hearing officer must advise the parties of the reason for the 
continuance and any additional information required. Any testimony taken by the 
hearing officer at the continuance of the hearing must be taken under oath and 
recorded. The parties will have an opportunity to rebut any additional evidence. 

sec.823.33.Withdrawal of Appeal.
(a) If a party requests a withdrawal of an appeal either during a hearing or in 
writing received by the Commission at any time before a final decision is 
issued, the hearing officer shall grant the request for withdrawal and issue an 
order of dismissal. The request for a withdrawal shall be sent to the Appeals 
Department, Texas Workforce Commission, 101 East 15th Street, Austin, Texas 
78778-0001 unless otherwise provided in the determination. 
(b) If the hearing officer believes the appellant was improperly induced or 
influenced to withdraw the appeal, prior to granting the withdrawal and 
dismissing the appeal, the hearing officer must advise the appellant to 
reconsider withdrawing the appeal. 
(c) If a party dies during the appeal process, the legal representative of the 
decedent's estate must pursue the appeal or the hearing officer may consider the 
appeal withdrawn.
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.
Filed with the Office of the Secretary of State on April 18, 1998.
TRD-9805404
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: May 8, 1998
Proposal publication date: January 16, 1998
For further information, please call: (512) 463-8812

SUBCHAPTER D.Decisions, Non-appearances, and Rehearings 
40 TAC sec.sec.823.41-823.44
The new rules are adopted under Texas Labor Code, sec.301.061 and sec.302.002, 
which provides the Texas Workforce Commission with the authority to adopt, 
amend, or repeal such rules as it deems necessary for the effective 
administration of Texas Workforce Commission programs; Texas Human Resources 
Code sec.sec.31.012, 31.0125, 44.002(a) and 44.035(d) which provides the Texas 
Workforce Commission with authority to adopt rules to carry out the respective 
chapters; and Texas Education Code, sec.132.023, which provides the Commission 
with the authority to adopt such rules as necessary for carrying out Chapter 
132. 

sec.823.42.Reopened Decision for Non-appearance.
A party has the right to request the reopening of the hearing until the 
expiration of thirty days from the date the decision is mailed if good cause 
exists for non-appearance at the hearing. The request must be in writing and 
detail the grounds for reopening. The Commission will determine whether the 
allegations establish that good cause exists to warrant reopening and will 
schedule a hearing, if deemed necessary, and render a decision. 

sec.823.43.Rehearing Decision.
(a) A party has thirty days from the date the decision was mailed to file a 
motion for rehearing for the presentation of new evidence.
(b) Motions for rehearing must be in writing and allege the new evidence to be 
considered. 
(c) If the hearing officer determines that the allegations justify a rehearing, 
a hearing will be scheduled at a reasonable time and place. 
(d) The Commission shall issue a decision in response to a timely filed motion 
for rehearing. 
(e) The Commission may assume continuing jurisdiction to modify, correct, or 
reform a decision until the expiration of thirty days from the date of mailing 
of the hearing decision. 

sec.823.44.Finality of Decision.
(a) The decision of the hearing officer shall become the final administrative 
decision of the Commission after the expiration of thirty days from the date of 
mailing of the decision unless a timely request for reopening or rehearing is 
filed with the Commission or the Commission assumes continuing jurisdiction to 
modify, correct, or reform a decision as provided by sec.823.43 of this title 
(relating to Rehearing Decision). 
(b) If a request for reopening or rehearing is timely filed or the Commission 
assumes continuing jurisdiction pursuant to sec.823.43 of this title (relating 
to Rehearing Decision), the resulting decision shall be final on the expiration 
of thirty days from the date of mailing of the decision in response to the 
request for reopening or rehearing or on the expiration of thirty days from the 
date of mailing of a subsequent decision issued by the Commission. 
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. 
Filed with the Office of the Secretary of State on April 18, 1998.
TRD-9805405
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Effective date: May 8, 1998
Proposal publication date: January 16, 1998
For further information, please call: (512) 463-8812