PROPOSED RULES
Before an agency may permanently adopt a new or amended section or repeal an 
existing section, a proposal detailing the action must be published in the Texas 
Register at least 30 days before action is taken. The 30-day time period gives 
interested persons an opportunity to review and make oral or written comments on 
the section. Also, in the case of substantive action, a public hearing must be 
granted if requested by at least 25 persons, a governmental subdivision or 
agency, or an association having at least 25 members.
Symbology in proposed amendments. New language added to an existing section is 
indicated by the <nl> code. [Brackets] indicate deletion of existing material 
within a section.

TITLE 1. ADMINISTRATION
PART III. Office of the Attorney General
CHAPTER 62.Sexual Assault Prevention and Crisis Services 
1 TAC sec.sec.62.25-62.32
The Office of the Attorney General, proposes sec.sec.62.25-62.32 to govern the 
currency of practice for sexual assault nurse examiners. The new rules define a 
process for currency of practice certification. 
Rebecca Turner-Gonzales, Grants Program Fiscal Administrator, Office of the 
Attorney General, has determined that for the first five year period the 
sections are in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the section.
The Budget and Purchasing Division has determined that for each year of the 
first five years the sections are in effect the public benefit anticipated as a 
result of enforcing the sections will be a statewide and uniformed process of 
certifying currency of practice for sexual assault nurse examiners. There will 
be no effect on small business as a result of enforcing these sections. There 
are no unusual cost to persons who are required to comply with these
sections as proposed. 
Comments on the proposal may be submitted to Jo Halligan, Director of 
Certification, Sexual Assault Prevention and Crisis Services Division, Office of 
the Attorney General, P. O. Box 12548, Austin, Texas 78711. 
The new rules are proposed under Government Code, sec.420.011(c), which provides 
the Office of the Attorney General with the authority to promulgate these rules. 
No other statute, code, or article is affected by these proposed new sections.

sec.62.25.Definitions.
In this chapter:
(1) "Forensic examination" means a medical examination conducted for the purpose 
of gathering evidence pertaining to a crime. 
(2) "Sexual assault nurse examiner ('SANE') " means a registered nurse who has 
been specially trained to provide comprehensive care to sexual assault 
survivors, who demonstrates competency in conducting a forensic exam for the 
collection of evidence and has the ability to testify as an expert witness. 
(3) "Currency of practice certification" means the formal process by which 
training received and the number of exams performed per year by a SANE are 
documented. 

sec.62.26.Requirements for Currency of Practice Certification.
(a) To be eligible, a registered nurse must: 
(1) Currently be licensed and in good standing as a Registered Nurse (RN) 
through the Texas Board of Nurse Examiners; 
(2) Have a minimum of two years experience as a Registered Nurse; and 
(3) Have successfully completed an OAG approved SANE training course and 
required clinical hours. 
(b) Currency of practice certification will be awarded for:
(1) SANEs trained before September 30, 1998; and 
(2) SANEs trained after October 1, 1998; 
(c) Eligibility requirements are set forth as follows: 
Figure: 1 TAC sec.62.26(c)
(d) Fifty-six hours of didactic training must be completed within a three-month 
period and must include a pre- and post training test. The didactic training 
must include the following topics: 
(1) Historical perspectives, for a total of no less than 30 minutes, including 
the historical development of the sexual assault nurse examiner conceptual 
model; 
(2) Definitions and facts of sexual assault, for a total of no less than one and 
one half hours, including the following topics: 
(A) Historical perspectives of sexual assault; 
(B) Myths vs facts; 
(C) Confidentiality; 
(D) Value clarification; 
(E) Ethics; 
(F) Definition of sexual assault; and 
(G) Socialization issues. 
(3) Role and responsibility of a SANE, for a total of no less than one and one-
half hours, including the following topics: 
(A) Perception of health care workers; 
(B) Timely medical/forensic examination with complete evidence collection; 
(C) Avoidance of further trauma to the survivor; 
(D) Compassionate and sensitive care giving; 
(E) Referrals for follow up care and counseling; and 
(F) Expert witness testimony. 
(4) Orientation to sexual assault issues, for a total of no less than one and 
one-half hours, including the following topics:
(A) Profile of sexual assault survivors with case studies on: 
(i) Stranger assault; 
(ii) Acquaintance assault; and 
(iii) Partner/spouse assault. 
(B) Profile of sexual assault offenders: 
(i) Anger; 
(ii) Power; and 
(iii) Sadism. 
(5) Symptomology of survivors and crisis intervention skills, for a total of no 
less than one and one-half hours, including the following topics: 
(A) Rape Trauma Syndrome: 
(i) Acute; and 
(ii) Long range symptoms; 
(B) Working with significant others; 
(C) Orientation to a crisis; 
(D) Communication skills/active listening skills; and 
(E) Appropriate and inappropriate responses. 
(6) Needs of special populations, for a total of no less than two hours, 
including the following topics for both the differently-abled and the elderly: 
(A) Sexually assaulted males; 
(B) Persons sexually assaulted by their partners; 
(C) Persons from different cultures; and 
(D) Persons with different religious beliefs. 
(7) Vicarious victimization, for a total of no less than one hour, that 
includes: 
(A) Secondary victimization of SANEs; 
(B) Stress and burnout of SANEs; 
(C) Community resources for RNs; 
(D) Responsibility and limitations; 
(E) Local community attitudes; and 
(F) Client's needs vs care givers needs. 
(8) Identification of the advanced practice skills necessary to complete the 
sexual assault examination, for a total of no less than one hour, including the 
following topics: 
(A) History of encounter from survivor; 
(B) Head-to-toe examination for trauma identification; 
(C) Detailed genital examination for trauma identification; and 
(D) Evidence collection. 
(9) History-taking skills, for a total of no less than four and one-half hours, 
including the following topics: 
(A) Purpose of obtaining a medical history; 
(B) Behavioral observation and interpretation of verbal and nonverbal 
communication of the survivor; 
(C) Initial reactions of survivor; 
(D) Interview location; 
(E) Establishing rapport with survivor; 
(F) Empathy for survivor; 
(G) Importance of verbatim history; and 
(H) Non-leading interview technique. 
(10) Components of head-to-toe physical assessment for injury identification, 
for a total of no less than one and one-half hours, including the following 
topics: 
(A) Primary assessment; 
(B) Secondary assessment; 
(C) Injury documentation/photo documentation; and 
(D) Evaluation for physician consultation. 
(11) Orientation to the adult female and male genital anatomy and developmental 
stages, for a total of no less than one and one-half hours, including the 
following topics: 
(A) Female and male genitalia; and 
(B) Tanner stages of development. 
(12) Detailed genital examination for injury identification, for a total of no 
less than two hours, including the following topics: 
(A) Visualization techniques; 
(i) Positioning; 
(ii) Inspection; 
(iii) Separation; 
(iv) Traction; and 
(v) Knee chest. 
(B) Visualization adjuncts; 
(i) Foley catheter; 
(ii) Vaginal speculum; 
(iii) Toluidine blue dye; and 
(iv) Colposcope. 
(C) Injury documentation/photo documentation 
(13) Sexual assault examination/forensic documentation forms, for a total of no 
less than one and one-half hours, including the following topics: 
(A) Anatomical drawing documentation; 
(B) Documentation of examination impression; 
(C) Restriction of forensic form access; and 
(D) Medical records. 
(14) Laws specific to sexual assault and evidence collection, for a total of no 
less than one hour, including the following topics: 
(A) Texas Penal Code; 
(B) Texas Family Code; 
(C) Laws protecting sexual assault survivors; and 
(D) Chapter 56, Code of Criminal of Procedure. 
(15) Steps of evidence collection, for a total of no less than four hours, 
including the following topics: 
(A) Specimens obtained based on gender and orifice penetrated;
(B) Specimen collection, preparation and packaging: 
(i) Clothing evidence; 
(ii) Hair evidence; 
(iii) Bitemark evidence; 
(iv) Fingernail debris collection; 
(v) Debris collection; 
(vi) Swabs and smears (oral, vaginal, penile, rectal, and other dried fluids); 
(vii) Whole blood specimens; 
(viii) Saliva specimens; and 
(ix) Blood/urine toxicology studies. 
(C) Documentation of evidence collection. 
(D) Chain of custody/ release of evidence. 
(16) Medical treatment for the adult sexual assault survivor, for a total of no 
less than one hour, including the following topics:
(A) Sexually transmitted disease (STD) concerns and prophylactic medication 
based on center for disease control guidelines; and 
(B) Pregnancy exposure. 
(17) Local social services network, for a total of no less than 30 minutes, 
including referral resources available to survivors.
(18) Child sexual assault, for a total of no less than one hour, including the 
following topics: 
(A) Orientation to the sexual abuse of children; 
(B) Profile of survivors with case studies; 
(C) Children at risk; and 
(D) Indicators of sexual assault: 
(i) Behavioral indicators; 
(ii) Physical indicators; and 
(iii) Sexual language. 
(19) Profile of offender, for a total of no less than one and one-half hours, 
including the following topics: 
(A) Typology; and 
(B) Thinking errors. 
(20) Methods used to abuse children, for a total of no less than 30 minutes, 
including the following topics: 
(A) Conditioning/grooming; and 
(B) Engagement phases. 
(21) Crisis intervention for children, for a total of no less than 30 minutes, 
including the following topics: 
(A) Communication skills/active listening skills; and 
(B) Appropriate and inappropriate responses. 
(22) Growth and development stages, for a total of no less than one hour, 
including the following topics: 
(A) Erickson's stages of development; 
(B) Freud's stages of development; and 
(C) Piaget's stages of development. 
(23) History-taking skills used with children, for a total of no less than one 
and one-quarter hours, including the following topics: 
(A) History-taking techniques communication skills for the non-leading process; 
and 
(B) Key history-taking techniques. 
(24) Various examination positions for children, for a total of no less than one 
hour, including the following topics: 
(A) Multi-method approach for positioning the prepubescent child: 
(i) Supine; 
(I) Inspection; 
(II) Separation; and 
(III) Traction. 
(ii) Knee/chest. 
(B) Examination positions in correlation with Tanner stages.
(25) Interpretation of prepubescent genital findings in children, for a total of 
no less than two hours, including the topic of variations of prepubescent 
genitalia. 
(26) Evaluation of hymenal variations and identification of trauma, for a total 
of no less than one and one-half hours, including the following topics: 
(A) Types of hymens; 
(B) Variations regarding hymens; and 
(C) Hymenal injuries. 
(27) Evaluation of anal abnormalities in children, for a total of no less than 
one and one-half hours, including the following topics: 
(A) Anal dilatation; and 
(B) Anal injuries. 
(28) Evaluation of male sexual genitalia, for a total of no less than one hour, 
including the following topics: 
(A) Penis; 
(B) Scrotum; and 
(C) Injury identification. 
(29) Various stages of genital healing, for a total of no less than one hour, 
including the following topics: 
(A) Superficial regeneration; and 
(B) Deep injury repair. 
(30) Medical treatment/forensic implications of sexually transmitted diseases in 
children, for a total of no less than one and one-half hours, including the 
following topics: 
(A) CDC recommendations; 
(B) History/symptomology; 
(C) Cultures; and 
(D) Chain of custody. 
(31) Benefit of multi-disciplinary approach for child sexual assault cases, for 
a total of no less than one hour, including the following topics: 
(A) Child advocacy; 
(B) Goals and mission; and 
(C) Case review process. 
(32) Colposcopic examinations of children, for a total of no less than one hour, 
including the following topics: 
(A) Orientation of colposcope and other magnifying equipment; and 
(B) Various photo documentation capabilities. 
(33) Laws specific to the reporting of child sexual abuse, for a total of no 
less than one hour, including the following topics:
(A) Texas Penal Code; and 
(B) Texas Family Code. 
(34) Expert witness testimony, for a total of no less than three hours, 
including the following topics: 
(A) Personal presentation; 
(B) Roles and responsibilities; 
(i) trial; and 
(ii) preparation; 
(C) Factual vs expert witness testimony; 
(D) Rules of testimony; and 
(E) Diagraming technique. 
(35) Criminal trial procedure, for a total of no less than one hour, including 
the following topics: 
(A) Courtroom procedure; and 
(B) Role of defense and prosecution. 
(36) Testimony techniques, for a total of no less than four and one-half hours, 
including the topic of role-play in a courtroom setting. 

sec.62.27.Clinical Hours.
(a) The type of clinical hours will vary depending on the type of certification 
for which the registered nurse applies. RNs must complete classroom training 
before beginning their clinical hours. Clinical hours must be completed within 
six months after completing the classroom hours.
(b) For the purpose of sexual assault examinations and clinical hours, adults 
and children are defined from a developmental perspective:
(1) Adult A female who has began menses, and/or a male who has attained stage 
three of the Tanner Classification of Sexual Maturity;
(2) Child A female who is pre-menarcheal and/or a male pre-stage three of the 
Tanner Classification of Sexual Maturity. 
(c) An RN must complete a clinical experience of: 
(1) Twenty-four hours performing adult genital inspection and speculum 
examinations with preceptorship of a registered nurse, nurse practitioner or 
physician; 
(2) Twenty hours performing well-child exams with preceptorship of a registered 
nurse, nurse practitioner or pediatrician, with a focus on child development; 
(3) Perform interdependently within the preceptorship of a credentialed SANE or 
physician: 
(A) Six sexual assault examinations using a collection kit (estimated time 18 
hours) on adults; 
(B) Ten sexual assault examinations (estimated time 15 hours) on children; and 
(C) Twenty-four hours observing criminal trial proceedings.
(d) Documentation of the completed clinical hours must be dated and signed by a 
supervising individual. 

sec.62.28. Applications for Currency of Practice. 
(a) Applications must be obtained from the OAG SAPCS Division. The information 
that must be submitted is: 
(1) Completed checklist; 
(2) Application cover sheet; 
(3) Resume from applicant; 
(4) Copy of RN license; 
(5) Copy of classroom certificate; and 
(6) Copy of completed documentation of clinical hours form. 
(b) Applications will be reviewed by the OAG for compliance with the 
certification guidelines and rules. Site visits and/or phone interviews will be 
utilized to clarify the application information. The OAG will notify in writing 
approval or disapproval of a request for certification within 120 days of 
receipt of the application. RNs approved for certification will receive a 
written notice of their two year certification and a certificate. 
(c) Individuals denied certification will receive written instructions on 
corrections and/or additional information needed to meet the certification 
requirements. An amended certification packet and/or additional information must 
be received within 45 days of notice for corrections. The amended certification 
packet and/or corrections may be resubmitted once.

sec.62.29.Continuting Education/Skill Maintenance.
(a) Continuing education acquired by SANEs who have qualified for currency of 
practice certification must be directly related to the medical and emotional 
issues of sexual assault survivors. Information provided during the initial 56 
hour training does not count as continuing education. 
(b) Continuing education hours that must be completed within a two-year cycle 
are: 
(1) Eight hours of education regarding the adult sexual assault survivor; 
(2) A minimum of eight evidence collection kits on adult survivors; and 
(3) Sixteen hours of education regarding the pediatric sexual assault survivor, 
eight hours of which must be demonstrated through a case/slides/peer review 
mechanism; and 
(4) A minimum of 10 examinations on the child survivor,
(c) Accepted continuing education training is any training that is sponsored by 
the OAG and is sponsored by the Sexual Assault Prevention & Crisis Services 
Division, OAG, the Texas Association Against Sexual Assault (TAASA), the 
National Coalition Against Sexual Assault (NCASA), institutions of higher 
education (forensic or sensitivity courses), the International Association of 
Forensic Nurses (IAFN), the American Professional Society on the Abuse of 
Children (APSAC), or is delivered by a local sexual assault program that is 
funded by the OAG. RNs must receive certificates of attendance that include 
dates of attendance, hours accrued, name of sponsor, and their name. 
Certificates of attendance must be submitted to the OAG. Credit will not be 
given for continuing education hours if proof of attendance is not received. 

sec.62.30. Appeals.
(a) The Certification Appeals Committee is appointed for a three-year period by 
the Director, Sexual Assault Prevention and Crisis Services Division, OAG, and 
will be made up of two (2) OAG staff members and three Certified SANEs in 
current practice in the state of Texas. The committee will meet as needed. 
(b) A person appealing revocation of certification must put in writing: 
(1) Reason for requesting appeal; 
(2) Description of any unusual circumstances surrounding application; and 
(3) Justification for appeal. 
(c) The certification appeals committee must: 
(1) Hold a certification appeal hearing in Travis County, Texas; 
(2) Notify, 10 working days in advance, the individual denied certification of 
the certification appeal hearing; 
(3) Review the original application; 
(4) Review the appeal documentation; 
(5) Request any additional information as needed; 
(6) Meet as a group to finalize the decision; and 
(7) Respond in writing within 60 days within receipt of appeal letter.

sec.62.31.Revocation of Certification.
The Currency of Practice certification may be revoked for: 
(1) RN's inability to maintain documentation of established criteria for 
certification; 
(2) Falsification of documentation; 
(3) Violation of patient confidentiality; 
(4) Random chart review demonstrating deviation from the OAG evidence collection 
protocol and/or local policy; 
(5) Felony conviction; or 
(6) Misdemeanor conviction for perjury or sex offense.

sec.62.32. Appeals Process for Revocation of Certification.
(a) The revocation appeals committee and the certification appeals committee are 
the same committee. The revocations committee must receive written complaints 
and/or site visit reports documenting policy violations.
(b) A person appealing revocation of certification must put in writing: 
(1) Reason for requesting appeal; 
(2) Description of any unusual circumstances surrounding application; and 
(3) Justification for appeal. 
(c) The revocation appeals committee must: 
(1) Hold a certification appeal hearing in Travis County, Texas; 
(2) Notify, ten 10 working days in advance, the individual who's certification 
has been revoked of the revocation appeal heating; 
(3) Review information supporting the allegations against the SANE; 
(4) Review the revocation appeal documentation; 
(5) Request any additional information as needed; 
(6) Meet as a group to finalize the decision; and 
(7) Respond in writing within 60 days of receipt of revocation appeal letter. 
(d) The revocation certification committee shall determine appeals and shall 
render decisions disposing of appeals of revocation of certification by ordering 
one of the following in each appeal process: 
(1) Revocation of certification; or 
(2) Granted the appeal. 
(e) An RN whose certification is revoked may reapply two years from the original 
application date. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 17, 1998.
TRD-9805431
Sarah Shirley
Assistant Attorney General
Office of the Attorney General
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 475-4499

TITLE 4. AGRICULTURE
PART II. Texas Animal Health Commission
CHAPTER 36.Exotic Livestock and Fowl
4 TAC sec.36.1, sec.36.2
The Texas Animal Health Commission proposes amendments to sec.36.1 and sec.36.2, 
concerning exotic livestock and fowl. The sections are being amended to update 
the terms of "Camelidae", "Cervidae", and "Bovidae". Camelidae is being amended 
in response to industry request to bring regulations into better focus on known 
patterns of disease. The amendment to Cervidae resolves conflicting regulations. 
The amendment to Bovidae brings regulation into alignment with accepted disease 
control practices. 
Kathryn A. Reed, General Counsel, has determined for the first five-year period 
the rules are in effect, there will be no fiscal implications for state or local 
government as a result of enforcing or administering the rules. 
Ms. Reed, also has determined that for each year of the first five years the 
rules are in effect, the public benefit anticipated as a result of enforcing the 
rules will be the updated terms of "Camelidae", "Cervidae", and "Bovidae". There 
is no anticipated economic cost to persons who are required to comply with the 
rules as proposed. 
Comments regarding the proposed amendments may be submitted to Ms. Edith Smith, 
Executive Assistant, P.O. Box 12966, Austin, Texas 78711-2966. 
The amendments are proposed under the Texas Agriculture Code, Chapter 161, 
sec.161.041b and sec.161.081a, which authorizes the Commission to enact rules to 
eradicate communicable disease.
No other statute, article, or code is affected by these amendments. 

sec.36.1. Definitions.
The following words and terms, when used in this chapter, shall have the 
following meanings, unless the context clearly indicates otherwise. 
<nl>(1)<ol> <nl>Camelidae-Members of the family of animals which includes 
camels, lamas, and vicunas. The domestic members of the genus lama includes the 
lama, alpaca, and guanaco. <ol>
<nl>(2)<ol> Commission--Texas Animal Health Commission.
<nl>(3)<ol> Exotic Bovidae--Non-indigenous members of the family of animals 
which includes water buffalo, gnu (wildebeast), addax, antelope and nilgai 
(among others). 
<nl>(4)<ol> Exotic Cervidae--Non-indigenous members of the family of animals 
which includes deer, elk, moose, caribou, reindeer and the sub-family musk deer. 
<nl>(5)<ol> Exotic fowl--Any avian species that is not indigenous to this state. 
The term includes ostriches. 
<nl>(6)<ol> Exotic livestock--Grass-eating or plant-eating, single-hooved or 
cloven-hooved mammals that are not indigenous to this state and are known as 
ungulates, including animals from the swine, horse, tapir, <nl> camel, lama, 
<ol>rhinoceros, elephant, deer, and antelope families. 
<nl>(7)<ol> Ratite--Exotic fowl with a flat breastbone and small or nonexistent 
wings, such as ostriches, emu, moa, and kiwi. 

sec.36.2.General.
(a)-(b) (No change.) 
(c) The following named species entering the State of Texas shall meet the 
specific requirements stated and this information recorded on the certificate: 
(1) Exotic cervidae--Negative to a brucellosis [and cervical skin] test [for 
tuberculosis] within 30 days prior to entry. <nl> Tuberculosis test requirements 
are specified in sec.43.23 of this title (relating to Requirements for Entry 
into Texas)<ol>. 
(2) Exotic Bovidae--Negative to a brucellosis [ and tuberculosis test] within 30 
days prior to entry. <nl>Negative to a tuberculosis text within 60 days prior to 
entry.<ol> 
(3) Camelidae--Negative to a brucellosis and axilary skin test for tuberculosis 
within <nl> six months<ol> [30 days] prior to entry<nl>, on all animals 18 
months of age and older<ol>. 
(4) (No change.) 
(5) Ratites-- 
(A)-(C) (No change.) 
(D) Ratites destined for slaughter only may enter Texas accompanied by an entry 
permit and either a waybill or health certificate without meeting the 
requirements of subparagraphs (A)-(C) of this <nl>paragraph<ol> [section]. 
(d) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805497
Kathryn A. Reed
General Counsel
Texas Animal Health Commission
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 719-0714

TITLE 10. COMMUNITY DEVELOPMENT
PART V. Texas Department of Economic Development
CHAPTER 161.Rural Industrial Development Finance Plan Closing Procedures
10 TAC sec.161.92
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Department 
of Economic Development or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Economic Development (Department) proposes the repeal of 
Chapter 161. Rural Industrial Development Finance Plan Closing Procedures in its 
entirety, concerning escrow of bond papers. The repeal is necessary to 
accurately reflect current law. Agency review of this rule has found that the 
reason for readoption has ceased to exist. 
Robin Abbott, General Counsel, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications to state or 
local governments as a result of the repeal of the rules. No cost to either 
government or the public will result from the repeal of the rules. There will be 
no impact on small businesses. No economic cost is anticipated to persons as a 
result of the repeal of the Rural Industrial Development Finance Plan Closing 
Procedures. 
Ms. Abbott also has determined that for each year of the first five years the 
public benefit anticipated as a result of the repeal of the rules will be a 
clearer understanding of existing Department programs and the rules applicable 
to those programs. 
Written comments on the proposed repeal of the rules should be submitted to 
DeAnn Luper, Legal Assistant, Texas Department of Economic Development, P. O. 
Box 12728, 1700 North Congress, Austin, Texas 78711, within 30 days of the 
publication of the proposed repeal. Comments may be faxed to Ms. Luper at (512) 
936-0415. Comments received after the 30 day period will not be considered.
Texas Government Code, Chapter 481, is affected by this proposal. 
The rules are repealed under the authority of sec.481.044(a) of the Texas 
Government Code, which authorizes the Department to promulgate rules necessary 
for the administration of department programs and may adopt rules for its 
internal management and control, and the Administrative Procedure Act, Texas 
Government Code, Chapter 2001, which prescribes the standards for agency 
rulemaking. 
sec.161.92.Escrow of Papers.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 14, 1998.
TRD-9805202
W. Lane Lanford
Chief Administrative Officer
Texas Department of Economic Development
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 969-0181

TITLE 16. ECONOMIC REGULATION
PART I. Railroad Commission of Texas
CHAPTER 5.<nl>Rail<ol> [Transportation] Division
SUBCHAPTER A.General Provisions
16 TAC sec.5.10
The Railroad Commission of Texas proposes new sec.5.10, relating to the rail 
advisory committee. Pursuant to the requirements of Texas Government Code, 
sec.sec.2110.001--2110.008, the new section creates the rail advisory committee 
of the commission and establishes its duration; sets forth the purpose and 
duties of the committee; prescribes the composition of the committee, the 
nomination and appointment process, and the membership terms of the committee; 
and sets forth the mechanisms by which the committee meets, performs its work, 
and is evaluated. 
Jerry Martin, director, Rail Division, has determined that for each year of the 
first five years the new section is in effect there will be fiscal implications 
for state and local governments as a result of enforcing or administering the 
section. The exact impact cannot be determined until the committee appointments 
are made, but it will consist of travel expense for the state and local 
government representatives on the committee to attend committee meetings, and 
the cost of commission staff support for the rail advisory committee, which will 
be provided within existing Rail Division staffing and budget. 
Mr. Martin has also determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be the creation of a network through which the commission may 
obtain timely information about the conditions and reliability of rail service 
for Texas shippers; the ability to survey shippers to better understand their 
needs; and the development of comprehensive policy options which support the 
needs of both shippers and the rail industry and which the commission can 
advance to the Texas legislature and the federal government. 
There is an anticipated economic cost to small businesses and to individuals, 
but to only those small business owners or individuals who are members of the 
rail advisory committee; due to the nature of the provisions, the amount of that 
cost cannot be determined. The anticipated economic cost arises from the 
provision that the commission will not reimburse advisory committee members for 
travel or other expenses related to service on the committee. Such expenses are 
likely to be different for each committee member. Because membership on the 
committee is voluntary, none of the anticipated cost is mandatory. 
Comments on the proposal may be submitted to Jerry Martin, Director, Rail 
Division, Railroad Commission of Texas, P. O. Box 12967, Austin, Texas 78711-
2967. Comments will be accepted for 30 days after publication in the Texas 
Register. For more information, telephone Mr. Martin at (512) 463-7001, or visit 
the commission's web site at http://www.rrc.state.tx.us/.
The commission proposes the new section under Texas Civil Statutes, Article 
6445, which gives the commission broad authority to regulate railroads and to 
perform other duties in connection with such regulation, and to adopt all 
necessary regulations; Texas Civil Statutes, Article 6448a, which authorizes the 
commission to issue rules as permitted by the Federal Railroad Safety Act of 
1970; and Texas Government Code, sec.sec.2110.001--2110.008, which mandate 
specific requirements for state agency advisory committees. 
Texas Civil Statutes, Articles 6445 and 6448a, and Texas Government Code, 
sec.sec.2110.001--2110.008, are affected by the proposed new section.

sec.5.10.Rail Advisory Committee.
(a) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) Commission--The Railroad Commission of Texas. 
(2) Committee--The Rail Advisory Committee of the commission.
(3) Consumer representative--A member of the committee who is not engaged in the 
business of railroad operations, but who is an end user of rail transportation 
or related services, including but not limited to shippers of aggregates and 
concrete, agricultural products, chemicals, plastics, scrap metal and recycled 
materials, forest products, or automobiles.
(4) Division--The Rail Division of the commission. 
(5) Fiscal year--September 1 of a year through August 31 of the following year. 
(6) Industry representative--A member of the committee who is engaged in the 
business of railroad operations, or who is engaged in the business of performing 
services of any type for a railroad. 
(7) Local government representative--A member of the committee who is an elected 
official for a city or county; a member of the board of a rural rail 
transportation district; or a representative of a port authority. 
(8) Member--An industry representative, a consumer representative, or a local 
government representative who serves on the committee. 
(9) Presiding officer--The chair of the committee. 
(b) Establishment; duration. The Rail Advisory Committee of the commission is 
hereby established effective July 1, 1998. The committee is abolished on July 1, 
2002, unless the commission amends this subsection to establish a different 
date. 
(c) Purpose and duties. The purpose of the committee is to give the commission 
the benefit of the members' collective business, technical, and operating 
expertise and experience to help the commission in obtaining timely information 
about the conditions and reliability of rail service for Texas shippers to 
better understand their needs and in developing comprehensive policy options 
which support the needs of both shippers and the rail industry and which the 
commission can advance to the Texas legislature and the federal government. The 
committee's sole duty is to advise the commission. The committee has no 
executive or administrative powers or duties with respect to the operation of 
the division; all such powers and duties rest solely with the commission.
(d) Composition of committee; membership terms. The committee shall be composed 
of 22 members, 21 of whom shall be voting members. The voting members' terms 
shall be two years, from July 1 of the year of a member's appointment through 
June 30 of the second year following appointment. The director of the Rail 
Division shall serve as an ex officio, non-voting member of the committee. The 
21 voting members, all of whom serve at the pleasure of the commission, shall 
include:
(1) 11 consumer representatives; 
(2) five industry representatives from Class 1, Class 2, or Class 3 railroads; 
and 
(3) five local government representatives. 
(e) Presiding officer; other officers. The commission shall designate a member 
of the committee to be the presiding officer who shall report the committee's 
advice and attendance in writing to the commission. The committee may elect 
other officers at its pleasure. 
(f) Subcommittees. 
(1) The committee shall be organized into the following subcommittees:
(A) Rail Shippers Policy Subcommittee. This subcommittee shall develop policy 
recommendations regarding the conditions and reliability of rail service for 
Texas shippers and the development of comprehensive policy options which support 
the needs of both shippers and the rail industry. The membership of the Rail 
Shippers Policy Subcommittee shall consist of five consumer representatives, two 
industry representatives, and two local government representatives, which the 
commission shall name. The commission shall designate a consumer representative 
to serve as chair. 
(B) Rail Safety Policy Subcommittee. This subcommittee shall develop policy 
recommendations regarding safety in train operations and the interface of trains 
and the public. The membership of the Rail Safety Policy Subcommittee shall 
consist of three consumer representatives, three industry representatives, and 
three local government representatives, which the commission shall name. The 
commission shall designate a local government representative to serve as chair. 
(C) Future of Railroads Policy Subcommittee. This subcommittee shall develop 
policy recommendations regarding the future of railroads in areas such as 
abandonments, infrastructure improvement, and funding. The membership of the 
Future of Railroads Subcommittee shall consist of two consumer representatives, 
two industry representatives, and five local government representatives, which 
the commission shall name. The commission shall designate a local government 
representative to serve as chair. 
(2) The subcommittee chairs shall make written reports regarding their 
subcommittee's work to the presiding officer no less often than quarterly. The 
presiding officer may require subcommittee chairs to make written reports more 
frequently. 
(g) Nominations for committee membership. Any person may nominate a candidate or 
candidates for membership on the committee. Nominations shall be made in writing 
and submitted by June 1, 1998, for the initial committee, and by June 1 of each 
even-numbered year thereafter. Nominations may be submitted to the commission, a 
commissioner, or the director of the division for transmittal to the commission. 
(h) Appointment of members. All members of the committee and subcommittees are 
appointed by and serve at the pleasure of the commission. The commission shall 
appoint members of the first committee and subcommittees by June 30, 1998, and 
by June 30 of each even-numbered year thereafter, such that the composition of 
the committee meets the requirements of subsections (d) and (e) of this section. 
If a member resigns or otherwise vacates his or her position prior to the end of 
his or her term, the commission shall appoint a replacement who shall serve the 
remainder of the unexpired term.
(i) Meetings. The committee shall meet at the call of the presiding officer or 
the commission. Subcommittees shall meet at the call of the subcommittee chair, 
the presiding officer or the commission. Committee and subcommittee meetings are 
open to the public. 
(j) Reimbursement of members' expenses. The commission shall not reimburse 
members for travel or other expenses related to service on the committee or 
subcommittees. 
(k) Committee and subcommittee records. The division staff shall record and 
maintain the originals of the minutes of each committee and subcommittee 
meeting. The division shall maintain a record of actions taken by the committee 
and subcommittees and shall distribute copies of approved minutes and other 
committee and subcommittee documents to the commission and the committee and 
subcommittee members. 
(l) Evaluation of committee costs and benefits. By October 1 of each year, the 
division director shall evaluate for the previous fiscal year and report to the 
commission: 
(1) the committee's work; 
(2) the committee's usefulness; and 
(3) the costs related to the committee's existence, including the cost of 
commission staff time spent in support of the committee's and subcommittees' 
activities. 
(m) Report to Legislative Budget Board. The commission shall biennially report 
to the Legislative Budget Board the information developed under subsection (l) 
of this section in evaluating the committee's costs and benefits. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas on April 16, 1998
Filed with the Office of the Secretary of State, on April 16, 1998.
TRD-9805357
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 463-7008

PART II. Public Utility Commission of Texas
CHAPTER 22.Practice and Procedure
SUBCHAPTER H.Discovery Procedures
16 TAC sec.sec.22.142, 22.143
The Public Utility Commission of Texas proposes amendments to sec.22.142 
relating to Limitations on Discovery and Protective Orders and sec.22.143 
relating to Depositions. The proposed amendments are to update the sections to 
reflect current commission organization and practices. Project Number 17709 has 
been assigned to the proposed amendments. 
Ms. Paula Mueller, deputy chief, Office of Regulatory Affairs, has determined 
that for each year of the first five-year period the proposed sections are in 
effect there will be no fiscal implications for state or local government as a 
result of enforcing or administering the sections. 
Ms. Mueller has determined that for each year of the first five years the 
proposed sections are in effect the public benefit anticipated as a result of 
enforcing the sections will be rules that more accurately reflect current 
commission organization and practices. There will be no effect on small 
businesses as result of enforcing these sections. There is no anticipated 
economic cost to persons who are required to comply with the sections as 
proposed. 
Ms. Mueller has also determined that for each year of the first five years the 
proposed sections are in effect there will be no impact on employment in the 
geographic area affected by implementing the requirements of the sections.
Comments on the proposed amendments (16 copies) may be submitted to the Filing 
Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 
13326, Austin, Texas 78711-3326, within 30 days after publication. The 
Appropriations Act of 1997, HB 1, Article IX, Section 167 requires that each 
state agency review and consider for readoption each rule adopted by that agency 
pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). 
Such reviews shall include, at a minimum, an assessment by the agency as to 
whether the reason for adopting or readopting the rules continues to exist. The 
commission invites specific comments regarding whether the reason for adopting 
these rules continues to exist in considering the proposed amendments. All 
comments should refer to Project Number 17709 and reference Procedural Rules, 
Subchapter H. 
These amendments are proposed under the Public Utility Regulatory Act, Texas 
Utilities Code Annotated sec.14.002 and sec.14.052 (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, 
including rules of practice and procedure. 
Cross Index to Statutes: Public Utility Regulatory Act sec.14.002 and 
sec.14.052. 

sec.22.142.Limitations on Discovery and Protective Orders. 
(a)- (c) (No change.) 
(d) Limitations on Requests for Information. 
(1)- (3) (No change.) 
(4) To discourage duplicate RFIs, any party that does not use its entire 
allotment of RFIs directed toward another party may transfer, by written notice 
to the presiding officer, that portion of its allotment to any other party in 
the proceeding. The requirements of this paragraph do not apply to RFIs 
originating from the <nl>Office of Regulatory Affairs<ol> [general counsel] or 
directed to the <nl>Office of Regulatory Affairs<ol> [general counsel]. 
(5) The presiding officer may use discretion in determining whether to limit the 
number of RFIs that may be propounded upon the <nl> Office of Regulatory 
Affairs<ol> [general counsel] or the Office of Public Utility Counsel by another 
party. In making this determination, the presiding officer shall consider the 
limited resources available to each agency, and specifically that the <nl>Office 
of Regulatory Affairs<ol> [general counsel] is required by law to represent the 
public interest in all proceedings before the commission. 
(6) The presiding officer may limit or expand the number of RFIs that the 
<nl>Office of Regulatory Affairs<ol> [general counsel] may propound upon any 
other party, and shall consider that the <nl> Office of Regulatory Affairs<ol> 
[general counsel] is required by law to represent the public interest in all 
proceedings before the commission, and thus may require more questions than 
other parties to ensure that it adequately explores all of the issues presented 
in the case. 

sec.22.143. Depositions.
(a) - (b) (No change.) 
(c) Copy to Be Provided. Upon receipt of a transcript of the deposition by the 
party, the party conducting the deposition shall provide a copy of the 
transcript to the <nl>Office of Regulatory Affairs<ol> [general counsel]. 
(d) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 16, 1998.
TRD-9805355
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 936-7308

TITLE 22. EXAMINING BOARDS
PART XI. Board of Nurse Examiners
CHAPTER 213.Practice and Procedure
22 TAC sec.sec.213.1-213.33
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Board of Nurse 
Examiners or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.)
The Board of Nurse Examiners proposes the repeal of sec.sec.213.1-213.33 
concerning Definitions, Construction, Pleading, Representation, Appearance, 
Agreements in Writing, Final Disposition, Filing of Documents, Computation of 
Time, Notice and Service, Motion for Continuance, Witness Fees and Expenses, 
Complaint Investigation and Disposition, Preliminary Notice to Respondent in 
Disciplinary Matters, Commencement of Disciplinary Proceedings, Respondent's 
Answer in a Disciplinary Matter, Discovery, Depositions, Subpoenas, Informal 
Proceedings, Agreed Disposition, Formal Hearing Procedures and Practices, 
Decision of the Board, Rescission of Probation, Monitoring, Reissuance of a 
License, Good Professional Character, Licensure of Persons with Criminal 
Convictions, Eligibility and Disciplinary Criteria Regarding Intemperate Use and 
Lack of Fitness, Declaratory Order of Eligibility for Licensure, Cross Reference 
of Rights and Options Available to Licensees and Petitioners, Schedule of Fines, 
and Penalty/Sanction Factors. 
The repeal would allow for the adoption of new sections. 
The Board of Nurse Examiners has reviewed Chapter 213, Practice and Procedure, 
and has determined that a complete revision is necessary, due in part to the 
newly adopted State Office of Administrative Hearings rules and to efforts to 
streamline staff processes. 
Katherine A. Thomas, MN, RN, executive director, has determined that there will 
be no fiscal implications for state or local government as a result of enforcing 
or administering the rule. 
There will be no effect on local government nor businesses to comply with the 
rule. 
Katherine A. Thomas, MN, RN, executive director, has determined that for each 
year of the first five years the rule as proposed the public is not effected. 
Written comments on the proposed repeal may be submitted to Kathy Thomas, Board 
of Nurse Examiners, Post Office Box 430; Austin, Texas 78767-0430. 
The repeal is proposed under the Nursing Practice Act, (Texas Civil Statutes, 
Article 4514), sec.1, which provides the Board of Nurse Examiners with the 
authority and power to make and enforce all rules and regulations necessary for 
the performance of its duties and conducting of proceedings before it. 
There are no other rules, codes, or statutes that will be effected by this 
proposal. 
sec.213.1. Definitions. 
sec.213.2. Construction. 
sec.213.3. Pleading. 
sec.213.4. Representation. 
sec.213.5. Appearance.
sec.213.6. Agreements in Writing. 
sec.213.7. Final Disposition. 
sec.213.8. Filing of Documents. 
sec.213.9. Computation of Time. 
sec.213.10. Notice and Service. 
sec.213.11. Motion for Continuance. 
sec.213.12. Witness Fees and Expenses.
sec.213.13. Complaint Investigation and Disposition.
sec.213.14. Preliminary Notice to Respondent in Disciplinary Matters. 
sec.213.15. Commencement of Disciplinary Proceedings.
sec.213.16. Respondent's Answer in a Disciplinary Matter. 
sec.213.17. Discovery. 
sec.213.18. Depositions. 
sec.213.19. Subpoenas. 
sec.213.20. Informal Proceedings. 
sec.213.21. Agreed Disposition. 
sec.213.22. Formal Hearing Procedures and Practices.
sec.213.23. Decision of the Board. 
sec.213.24. Rescission of Probation. 
sec.213.25. Monitoring. 
sec.213.26. Reissuance of a License. 
sec.213.27. Good Professional Character. 
sec.213.28. Licensure of Persons with Criminal Convictions.
sec.213.29. Eligibility and Disciplinary Criteria Regarding Intemperate Use and 
Lack of Fitness. 
sec.213.30. Declaratory Order of Eligibility for Licensure. 
sec.213.31. Cross Reference of Rights and Options Available to Licensees and 
Petitioners. 
sec.213.32.Schedule of Fines. 
sec.213.33. Penalty/Sanction Factors. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 17, 1998.
TRD-9805387
Katherine A. Thomas, MN RN
Executive Director
Board of Nurse Examiners
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 305-6811

22 TAC sec.sec.213.1-213.33
The Board of Nurse Examiners proposes new sec.sec.213.1-213.33 concerning 
Definitions, Construction and Application, Pleading, Representation, Appearance, 
Agreements in Writing, Final Disposition, Filing of Documents, Computation of 
Time, Notice and Service, Non SOAH - Motion for Continuance, Witness Fees and 
Expenses, Complaint Investigation and Disposition, Preliminary Notice to 
Respondent in Disciplinary Matters, Commencement of Disciplinary Proceedings, 
Respondent's Answer in a Disciplinary Matter, Discovery, Depositions, Subpoenas, 
Informal Proceedings, Agreed Disposition, Formal Proceedings, Decision of the 
Board, Rescission of Probation, Monitoring, Reissuance of a License, Good 
Professional Character, Licensure of Persons with Criminal Convictions, Criteria 
and Procedure Regarding Intemperate Use and Lack of Fitness in Eligibility and 
Disciplinary Matters, Declaratory Order of Eligibility for Licensure, Cross 
Reference of Rights and Options Available to Licensees and Petitioners, Schedule 
of Fines, and Penalty/Sanction Factors. 
The Board of Nurse Examiners has reviewed Chapter 213, Practice and Procedure, 
and has determined that a complete revision is necessary, due in part to the 
newly adopted State Office of Administrative Hearings rules and to efforts to 
streamline staff processes. 
The new chapter will state the requirements for application of the statute and 
the manner in which those requirements will be implemented. In addition, the 
amendments will provide the necessary requirements needed to reactivate a 
license which has been refused. 
Katherine A. Thomas, MN, RN, executive director, has determined that there will 
be no fiscal implications for state or local government as a result of enforcing 
or administering the rule. 
There will be no effect on local government nor businesses to comply with the 
rule. 
Katherine A. Thomas, MN, RN, executive director, has determined that for each 
year of the first five years the rule as proposed will be in effect the public 
is assured enhanced protection. 
Written comments on the proposed amendments may be submitted to Kathy Thomas, 
Board of Nurse Examiners, P.O. Box 430; Austin, Texas 78767-0430. 
The amendments are proposed under the Nursing Practice Act, (Texas Civil 
Statutes), Article 4514, sec.1, which provides the Board of Nurse Examiners with 
the authority and power to make and enforce all rules and regulations necessary 
for the performance of its duties and conducting of proceedings before it and 
Article 4525(a) which permits the Board to refuse to issue or renew a license. 
Article 4525(a) and (a-1) are affected by this section. 

sec.213.1.Definitions. 
The following words and terms, when used in this chapter, shall have the 
following meanings, unless the context clearly indicates otherwise:
(1) Act - The Nursing Practice Act, Texas Civil Statutes, Articles 4513 - 4528, 
sometimes also called the NPA. 
(2) Address of record - The address of each licensee as provided to the Board of 
Nurse Examiners pursuant to sec.217.10 of this title (relating to Change of Name 
and/or Address).
(3) Administrative Law Judge or ALJ - An individual appointed by the chief 
administrative law judge of the State Office of Administrative Hearings to 
preside over administrative hearings pursuant to Texas Government Code, Chapter 
2003. 
(4) Adverse licensure action - Any action to revoke, suspend, annul, withdraw or 
otherwise discipline, sanction or limit a license. 
(5) Answer - A responsive pleading.
(6) APA - Administrative Procedures Act, sec.2001.001, et seq, Texas Government 
Code. 
(7) Attorney of record - A person licensed to practice law in Texas who has 
provided the staff with written notice of representation.
(8) Board - The Board of Nurse Examiners appointed pursuant to Texas Civil 
Statutes, Article 4513, et seq. For purposes of this section, Board includes a 
three member standing committee designated by the Board to determine matters of 
eligibility for licensure and discipline of licensees.
(9) Client - See Patient. 
(10) Complaint - Written accusations made by any person, or by the Board on its 
own initiative, alleging that a licensee's conduct may have violated the NPA. 
(11) Complaint form - A standard form designed to collect at least the following 
information: RN/Respondent Name, License Number, Social Security Number, Date of 
Birth, Employer, Dates of Occurrence(s), Description of Facts or Conduct, 
Witnesses, Outcome, Complainant Identification (Name, Address, and Telephone 
Number), and Written Instructions For Providing Information to the Board. 
(12) Contested case - A proceeding including, but not restricted to rate making 
and licensing, in which the legal rights, duties or privileges of a party are to 
be determined by an agency after an opportunity for adjudicative hearing. 
(13) Continuance - The postponement of any stage of a contested case. 
(14) Conviction - The result of a criminal proceeding wherein an individual, 
based on a plea or verdict, is adjudged guilty of the offense charged. 
(15) Declaratory order - An order, issued by the Board pursuant to Texas Civil 
Statutes, Article 4519a, determining the eligibility of an individual for 
initial licensure as a registered nurse and setting forth both the basis for 
potential ineligibility and the Board's determination of the disclosed 
eligibility issues. 
(16) Default judgment - The issuance of a proposal for decision in which the 
factual allegations against the respondent in a contested case are deemed 
admitted as true upon the respondent's failure to appear at a properly noticed 
hearing. 
(17) Eligibility and Disciplinary Committee - A three member committee, a 
majority of whom shall be RNs, authorized by the Board to make a final 
disposition of licensure eligibility and disciplinary matters including 
temporary suspension. 
(18) Eligibility matter - A proceeding by which an individual requests licensure 
(such as by Petition for Declaratory Order, Application for Examination, 
Application for Endorsement), Reinstatement, Reissuance, or Renewal. 
(19) Executive director - The executive director of the Board of Nurse 
Examiners. 
(20) Formal charges - Pleading of the staff publicly alleging the reasons for 
disciplinary actions against a registered nurse. 
(21) Hearing - A public adjudicative proceeding at the State Office of 
Administrative Hearings. 
(22) Informal conference - A non-public settlement meeting conducted by the 
executive director or designee to resolve a contested case.
(23) Initial licensure - The original grant of permission to practice 
professional nursing in Texas, regardless of the method through which licensure 
was sought. 
(24) License - Includes the whole or part of any board permit, certificate, 
approval, registration, or similar form of permission required by law to 
practice professional nursing in the State of Texas. 
(25) Licensee - A person who has met all the requirements to practice as a 
registered nurse pursuant to the Nursing Practice Act and the Rules and 
Regulations relating to Professional Nurse Education, Licensure and Practice and 
has been issued a license to practice professional nursing in Texas. 
(26) Licensing - Includes the Board's process with respect to the granting, 
denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of 
a license. 
(27) May - Discretionary provision. 
(28) Minor Incident - Conduct in violation of the Nursing Practice Act, which 
based on a thorough evaluation of factors enumerated under Rule 217.19(b) of 
this title (relating to Minor Incidents), does not indicate that the nurse's 
continuing to practice professional nursing poses a risk of harm to a client or 
other person and need not be reported to the Board or peer review committee. 
(29) NPA - Nursing Practice Act (see "Act" in these definitions).
(30) Order - A written decision of the Board, regardless of form, signed by the 
executive director on its behalf. 
(31) Party - A person who holds a license issued by the Board of Nurse 
Examiners, a person who seeks to obtain, retain, or modify his or her license, 
or the Board of Nurse Examiners. 
(32) Patient - An individual under the care and treatment of a health care 
professional either at a health care facility or in his/her own home. 
(33) Person - Any individual, representative, corporation, or other entity, 
including any public or non-profit corporation, or any agency or instrumentality 
of federal, state, or local government. 
(34) Petitioner - A party, including the staff, who brings a request or action 
and assumes the burden of going forward with an administrative proceeding; e.g., 
the staff in an action to discipline a licensee, the person who seeks 
reinstatement of a license, or the person who seeks a determination of 
eligibility for licensure. 
(35) Pleading - A written document submitted by a party, or a person seeking to 
participate in a case as a party, which requests procedural or substantive 
relief, makes claims, alleges facts, makes legal argument, or otherwise address 
matters involved in the case. 
(36) Reinstatement - The process of reissuing and restoring a license to active 
status that has been previously suspended, revoked or voluntarily surrendered. 
(37) Respondent - A party, including the staff, to whom a request is made or 
against whom an action is brought, e.g.; the licensee in a disciplinary action 
by the staff; the Board in a reinstatement action; or the Board in an action to 
determine eligibility for licensure. 
(38) Rule - Any agency statement of general applicability that implements, 
interprets, or prescribes law or policy, or describes the procedure or practice 
requirements of an agency. The term includes the amendment or repeal of a prior 
rule, but does not include statements concerning only the internal management or 
organization of any agency and not affecting private rights or procedures. 
(39) Shall - Mandatory provision. 
(40) SOAH - The State Office of Administrative Hearings.
(41) Staff - The staff of the Board, not including the executive director. For 
purposes of these rules, the staff may act through the legal counsel.
(42) Technical error - An ALJ's misinterpretation or misapplication of sound 
nursing principles or minimum nursing practice standards in a proposal for 
decision that must be corrected to sufficiently protect the public. 
(43) Youthful indiscretion - Prior behavior inconsistent with the requirements 
of the penal laws of Texas or the Board's professional character requirements 
which, upon consideration of the factors enumerated in Rule 213.28(f) of this 
title (relating to Licensure of Persons with Criminal Convictions) should not 
bar an individual's eligibility to be licensed as a registered nurse. 

sec.213.2. Construction and Application.
(a) Unless otherwise expressly provided, the past, present or future tense shall 
each include the other; the masculine, feminine, or neuter gender shall each 
include the other; and the singular and plural number shall each include the 
other. 
(b) These rules apply to all contested cases within the Board's jurisdiction and 
shall control practice and procedure before the Board and the State Office of 
Administrative Hearings, unless pre-empted by rules promulgated by the SOAH. 

sec.213.3. Pleading. 
(a) In disciplinary matters: 
(1) In actions by the staff as petitioner against a licensee, subject to the 
Board's jurisdiction as respondent, the staff's pleading shall be styled "Formal 
Charges." 
(2) Except in cases of temporary suspension and injunction, formal charges shall 
be filed only after notice of the facts or conduct alleged to warrant the 
intended action has been sent to the licensee's address of record and the 
licensee has an opportunity to show compliance with the law for retention of the 
license as provided in the APA, Texas Government Code sec.2001.054(c). 
(b) In nondisciplinary matters: 
(1) In actions by the staff as petitioner to enforce and regulate matters within 
its power and authority, the staff's pleading shall be styled "Petition of the 
Board of Nurse Examiners." 
(2) In actions by a person as petitioner, (e.g., an individual seeking a 
determination of eligibility for licensure, examination or licensure applicant, 
or an individual seeking reinstatement of a surrendered, revoked or suspended 
license), the person's pleading shall be styled "Petition of NAME." The person 
shall have the burden of initiating the action, going forward with the 
administrative proceeding and proving the allegations contained in the pleading. 
An exception exists where the Board is obligated to give notice of and prove its 
basis for refusal or denial of a license, permit, application or petition. In 
such cases, the Board shall give written notice of the basis of its refusal or 
denial and shall have the burden of proving that basis at an administrative 
hearing. The Board may file an answer incorporating this notice or it may rely 
on the notice in lieu of a responsive pleading. 

sec.213.4.Representation. 
A person may represent himself/herself or be represented by an attorney licensed 
to practice law in Texas.

sec.213.5.Appearance. 
(a) Any person appearing before the Board in connection with a contested case 
shall prefile written testimony at least 21 days prior to the appearance. 
(b) In disciplinary and eligibility matters, appearances in contested cases may 
be made only by a party. 
(c) In disciplinary and eligibility matters, a non-party may file an amicus 
brief with the executive director, with contemporaneous filing at the SOAH if 
the SOAH has acquired jurisdiction. Non-parties who file under this provision 
must disclose: 
(1) their identities including name, address, telephone number, licensure, 
certification status; 
(2) their interest in the disciplinary or eligibility matter; 
(3) the identity of their members, subscribers, clients, constituents; 
(4) the identity of the persons or entities that may be benefitted by the 
position taken by the amicus; 
(5) the identity of the persons or entities that may be injured or disadvantaged 
by the position taken by the amicus; and 
(6) the financial impact of the position taken by the amicus.

sec.213.6. Agreements in Writing.
Unless otherwise provided by the NPA or these rules, no agreement between 
attorneys or parties concerning any action or matter pending before the Board 
will be enforced unless it is in writing, signed and filed with the papers as a 
part of the record, or unless it is made in open hearing and entered on record. 

sec.213.7.Final Disposition.
Except for matters expressly delegated to the executive director, no agreed 
order regarding eligibility or discipline shall be final or effective until 
approved by the Board.

sec.213.8.Filing of Documents. 
(a) All applications, petitions, complaints, motions, protests, replies, 
answers, notices, and other pleadings relating to any proceeding pending or to 
be instituted before the Board shall be filed with the executive director or 
designee. The date of filing is the date of actual receipt at the office of the 
Board. 
(b) Documents are to be filed at the SOAH only after it acquires jurisdiction. 
(See 213.22(a) of this title relating to Formal Proceedings and the SOAH rules, 
1 TAC 155.7). Copies of all documents filed at the SOAH must be 
contemporaneously served on the Board. 

sec.213.9.Computation of Time. 
(a) In computing any period of time prescribed or allowed by these rules, by 
order of the Board, or by any applicable statute, the day of the act, event, or 
default after which the designated period of time begins to run is not to be 
included. The last day of the period so computed is to be included, unless it is 
a Saturday, Sunday, a legal holiday, or another day on which the office is 
closed, in which event the period runs until the end of the next day which the 
office is open. When these rules specify a deadline or a set number of days for 
filing documents or taking other actions, the computation of time shall be by 
calendar days rather than business days, unless otherwise provided for in these 
rules. 
(b) Extension. Unless otherwise provided by statute, the time for filing any 
pleading, motion, or request may be extended by order of the executive director 
or ALJ (if the SOAH has acquired jurisdiction), upon written motion filed prior 
to the expiration of the applicable period of time for the filing of the same, 
showing that the need for extension is not caused by the neglect, indifference, 
or lack of diligence of the requesting party.

sec.213.10. Notice and Service.
(a) Notice must be in writing and addressed to the party. Notice to a licensee 
is effective and service is complete when sent by certified or registered mail, 
return receipt requested, to the licensee's address of record at the time of the 
mailing. 
(b) Notice to a non-licensee is effective and service is complete when sent by 
certified or registered mail, return receipt requested, to the person's address 
as stated on his/her petition, application, or other pleading.
(c) Notice to any person other than the Board is effective and service is 
complete when sent by certified or registered mail, return receipt requested, to 
the person's attorney of record. 

sec.213.11. Non SOAH - Motion for Continuance. 
(a) No continuance shall be granted except for sufficient cause supported by 
affidavit as detailed in subsection (b) of this section, by consent of the 
parties, or by operation of law. A party that files a motion for continuance 
fewer than 10 days before the date of the event specified in any non SOAH 
notice, must contact the other party and indicate in the motion whether the 
other party opposes it. 
(b) The motion shall be supported by a sworn affidavit detailing the reasons for 
the continuance. The affidavit shall also state that the continuance is not 
sought for delay, but so that justice may be served. 
(1) If the ground of such application is the need for testimony, the party 
requesting the continuance shall make an affidavit stating that such testimony 
is material, shall show the materiality thereof, shall state that he or she has 
used due diligence to procure such testimony, stating such diligence, and shall 
state the cause of failure, if known; and shall state that such testimony cannot 
be procured from any other source. 
(2) If it be for the absence of a witness, the party requesting the continuance 
shall state the name and residence of the witness, and what the party requesting 
the continuance expects to prove by such witness.
(3) If it be for the reason of a conflicting setting, the party requesting the 
continuance shall identify the conflict by style, cause number, court, agency, 
nature of setting and date the conflicting setting was made.

sec.213.12. Witness Fees and Expenses.
A witness who is not a party to the proceeding and who is subpoenaed to appear 
at a deposition or hearing or to produce books, papers, or other objects, shall 
be entitled to receive reimbursement for expenses incurred in complying with the 
subpoena, either the minimum as set in the APA or the State of Texas Travel 
Allowance Guide issued by the Comptroller of Public Accounts, whichever is 
greater. 

sec.213.13. Complaint Investigation and Disposition. 
(a) Complaints shall be made in writing on the agency's complaint form as 
described in sec.213.1 of this title (relating to Definitions, "Complaint 
forms"). Complainants shall be invited to explain their allegations. 
(b) A preliminary investigation shall be conducted to determine the identity of 
the person named or described in the complaint. 
(c) Complaints shall be assigned a priority status: 
(1) Priority 1 - those indicating that credible evidence exists showing a 
violation of the NPA involving actual deception, fraud or injury to clients or 
the public or a high probability of immediate deception, fraud or injury to 
clients or the public; 
(2) Priority 2 - those indicating that credible evidence exists showing a 
violation of the NPA involving a high probability of potential deception, fraud 
or injury to clients or the public; 
(3) Priority 3 - those indicating that credible evidence exists showing a 
violation of the NPA involving a potential for deception, fraud or injury to 
clients or the public; and 
(4) Priority 4 - all other complaints. 
(d) Not later than the 30th day after a complaint is received, the staff shall 
place a timeline for completion, not to exceed one year, in the investigative 
file and notify all parties to the complaint. Any change in timeline must be 
noted in the file and all parties notified of the change not later than seven 
days after the change was made. For purposes of this rule, completion of an 
investigation in a disciplinary matter occurs when:
(1) staff determines there is insufficient evidence to substantiate the 
allegation of a violation of the NPA, Board's rules or a Board order; or 
(2) staff determines there is sufficient evidence to demonstrate a violation of 
the NPA, Board's rules or a Board order and drafts proposed formal charges. 
(e) The staff shall provide summary data of complaints extending beyond the 
complaint timeline to the executive director. 

sec.213.14.Preliminary Notice to Respondent in Disciplinary Matters. 
(a) Prior to commencing disciplinary proceedings under sec.213.15 of this title 
(relating to Commencement of Disciplinary Proceedings), the staff shall serve 
the respondent with written notice in accordance with Texas Government Code 
sec.2001.054(c). 
(b) Such notice shall contain a statement of the facts or conduct alleged to 
warrant an adverse licensure action. The notice shall invite the respondent to 
show compliance with all requirements of the law for retention of the license. 
(c) Respondent shall file a written response within 30 days after service of the 
notice specified in subsection (a) of this section. 

sec.213.15. Commencement of Disciplinary Proceedings. 
(a) If a complaint is not resolved informally, the staff may commence 
disciplinary proceedings by filing formal charges. 
(b) The formal charges shall contain the following information:
(1) the name of the respondent and his or her license number;
(2) a statement alleging with reasonable certainty the specific act or acts 
relied on by the Board to constitute a violation of a specific statute, board 
rule or board order; and 
(3) a reference to the section of the Act or to the Board's rule, regulation, or 
order which respondent is alleged to have violated. 
(c) When formal charges are filed, the executive director shall serve respondent 
with a copy of the formal charges, a copy of the rules governing disciplinary 
proceedings, and notice of the time, date and location of the informal 
proceeding or hearing. The notice shall state that respondent shall file a 
written answer to the formal charges that meets the requirements of sec.213.16 
of this title (relating to Respondent's Answer in a Disciplinary Matter). 
(d) The staff may amend the formal charges at any time permitted by the APA. A 
copy of any formal amended charges shall be served on the respondent. The first 
charges filed shall be entitled "formal charges," the first amended charges 
filed shall be entitled "first amended formal charges," and so forth.
(e) Formal charges may be resolved by agreement of the parties at any time. 

sec.213.16.Respondent's Answer in a Disciplinary Matter. 
(a) The respondent in a disciplinary matter shall file an answer to the formal 
charges and to every amendment thereof. 
(b) The answer shall admit or deny each of the allegations in the charges or 
amendment thereof. If the respondent intends to deny only a part of an 
allegation, the respondent shall specify so much of it is true and shall deny 
only the remainder. The answer shall also include any other matter, whether of 
law or fact, upon which respondent intends to rely for his or her defense. 
(c) The respondent may amend his or her answer at any time permitted by the APA 
or the SOAH rules. 
(d) The first answer filed shall be entitled "answer," the first amended answer 
filed shall be entitled "first amended answer," and so forth. 

sec.213.17.Discovery.
(a) Parties to administrative proceedings shall have reasonable opportunity and 
methods of discovery described in the Texas Rules of Civil Procedure. Matters 
subject to discovery are limited to those which are relevant and material to 
issues within the Board's authority as set out in the NPA, Texas Civil Statutes, 
Article 4513, et seq. Subject to prior agreement of parties or unless explicitly 
stated in Board rules, responses to discovery requests, except for notices of 
depositions, shall be made within 20 days of receipt of the request. 
(b) Parties are encouraged to make stipulations of evidence where possible and 
to agree to methods and timelines to expedite discovery and conserve time and 
resources. 

sec.213.18.Depositions. 
(a) The deposition of any witness may be taken upon a commission issued by the 
executive director upon the written request of any party, a copy of which shall 
be served on the non-requesting party. 
(b) The written request shall contain the name, address, and title, if any, of 
the witness; a description of the books, records, writings, or other tangible 
items the requesting party wishes the witness to produce at the deposition; the 
date and location where the requesting party wishes the deposition to be taken; 
and a statement of the reasons why the deposition should be taken and the items 
produced. 
(c) Depositions may be taken by telephone and by non-stenographic recording. The 
recording or transcript thereof may be used by any party to the same extent as a 
stenographic deposition, provided all other parties are supplied with a copy of 
the recording and the transcript to be used. The witness in a telephonic or non-
stenographic deposition may be sworn by any notary. The transcript of such 
deposition shall be certified by the witness. 
(d) Not withstanding any other provisions of these sections, the executive 
director may issue a commission to take a deposition prior to the filing of 
charges under sec.213.15 of this title (relating to Commencement of Disciplinary 
Proceedings), if, in the opinion of the executive director, such a commission is 
necessary for either party to preserve evidence and testimony or to investigate 
any potential violation or lack of compliance with the Act, the rules and 
regulations, or orders of the Board. The commission may be to compel the 
attendance of any person to appear for the purposes of giving sworn testimony 
and to compel the production of books, records, papers or other objects. 
(e) A deposition in a contested case shall be taken in the county where the 
witness: 
(1) resides; 
(2) is employed; or 
(3) regularly transacts business in person.

sec.213.19.Subpoenas. 
(a) Upon the written request of any party, the executive director may issue a 
subpoena to require the attendance of witnesses or the production of books, 
records, papers, or other objects as may be necessary and proper for the 
purposes of the proceedings. 
(b) If the subpoena is for the attendance of a witness, the written request 
shall contain the name, address, and title, if any, of the witness and the date 
upon which and the location at which the attendance of the witness is sought. If 
the subpoena is for the production of books, records, writings, or other 
tangible items, the written request shall contain a description of the item 
sought; the name, address, and title, if any, of the person or entity who has 
custody or control over the items and the date on which and the location at 
which the items are sought to be produced. Each request, whether for a witness 
or for production of items, shall contain a statement of the reasons why the 
subpoena should be issued. 
(c) Upon a finding that a party has shown good cause for the issuance of the 
subpoena, the executive director shall issue the subpoena in the form described 
in Texas Government Code sec.2001.089. 
(d) Notwithstanding any other provisions of these sections, the executive 
director may issue a subpoena prior to the filing of formal charges under 
sec.213.15 of this title (relating to Commencement of Disciplinary Proceedings), 
if, in the opinion of the executive director, such a subpoena is necessary to 
preserve evidence and testimony to investigate any potential violation or lack 
of compliance with the Act, the rules and regulations, or orders of the Board. 
The subpoena may be to compel the attendance of any person to appear for the 
purposes of giving sworn testimony and/or to compel the production of books, 
records, papers, or other objects.

sec.213.20.Informal Proceedings.
(a) Any matter within the Board's jurisdiction may be resolved informally by 
stipulation, agreed settlement, agreed order, dismissal or default.
(b) In disciplinary matters, the Board shall offer the complainant and the 
licensee the opportunity to be heard. The offer may be made at any time prior to 
disposition and may be included on the Board's complaint form, on any notice 
required by statute or these rules, or otherwise. 
(c) Informal proceedings may be conducted in person, by attorney, or by 
electronic, telephonic, or written communication. 
(d) Informal conferences may be conducted at any time by the executive director 
or designee. 
(e) The Board's counsel or assistant attorney general shall participate in 
informal proceedings. 
(f) Disposition of matters considered informally may be made at any time in an 
agreed order containing such terms as the executive director may deem reasonable 
and necessary. Except as to matters delegated to the executive director for 
ratification, said agreed order shall not be final and effective until the 
Board, or an eligibility and disciplinary committee, votes to accept the 
proposed disposition. 
(g) Referral to peer assistance after report to the board.
(1) A nurse required to be reported under Article 4525a, Texas Civil Statutes, 
may obtain informal disposition through referral to a peer assistance program as 
specified in Article 4525a, Section 8, Texas Civil Statutes, as amended, if the 
nurse: 
(A) makes a written stipulation of the nurse's impairment by dependency on 
chemicals or by mental illness; 
(B) makes a written waiver of the nurse's right to administrative hearing and 
judicial review of: 
(i) all matters contained in the stipulation of impairment;
(ii) any future modification or extension of the peer assistance contract; 
(iii) the future imposition of sanctions under Article 4525.1, Texas Civil 
Statutes, in the event the executive director should determine the nurse has 
failed to comply with the requirements of the peer assistance program; and 
(C) makes a written contract with the Board of Nurse Examiners through its 
executive director promising to: 
(i) undergo and pay for such physical and mental evaluations as the executive 
director or the peer assistance program determine to be reasonable and necessary 
to evaluate the nurse's impairment; to plan, implement and monitor the nurse's 
rehabilitation; and, to determine if, when and under what conditions the nurse 
can safely return to practice; 
(ii) sign a participation agreement with the peer assistance program; 
(iii) comply with each and every requirement of the peer assistance program in 
full and timely fashion for the duration of the contract and any extension(s) 
thereof; and 
(iv) waive confidentiality and privilege and authorize release of information 
about the nurse's impairment and rehabilitation to the peer assistance program 
and the executive director of the Board of Nurse Examiners.
(2) Disposition of a complaint by referral to a peer assistance program is not a 
finding which requires imposition of a sanction under Article 4525.1, Texas 
Civil Statutes. 
(3) In the event the nurse fails to comply with the nurse's contract with the 
Board of Nurse Examiners or the nurse's participation agreement with the peer 
assistance program, such non compliance will be considered by the executive 
director at an informal proceeding after notice to the nurse of the non 
compliance and opportunity to respond. At the informal proceeding, the executive 
director may consider facts relevant to the alleged non compliance, modify or 
extend the contract or participation agreement, declare the contract satisfied 
or impose Article 4525.1 sanctions on the nurse which will result in public 
discipline and reporting to the National Council of State Boards of Nursing's 
Disciplinary Data Bank. 
(h) If eligibility matters are not resolved informally, the petitioner may 
obtain a hearing before an ALJ by submitting a written request to the staff. 
(i) If disciplinary matters are not resolved informally, formal charges may be 
filed in accordance with sec.213.15 of this title (relating to the Commencement 
of Disciplinary Proceedings) and the case may be set for a hearing before an ALJ 
in accordance with sec.213.22 of this title (relating to Formal Proceedings). 
(j) Predocketing conferences may be conducted by the executive director prior to 
the SOAH acquiring jurisdiction over the contested case. The executive director, 
unilaterally or at the request of any party, may direct the parties, their 
attorneys or representatives to appear before the executive director at a 
specified time and place for a conference prior to the hearing for the purpose 
of: 
(1) simplifying the issues; 
(2) considering the making of admissions or stipulations of fact or law; 
(3) reviewing the procedure governing the hearing; 
(4) limiting the number of witnesses whose testimony will be repetitious; and, 
(5) doing any act that may simplify the proceedings, and disposing of the 
matters in controversy, including settling all or part of the issues as in 
dispute pursuant to sec.213.20 and sec.213.21 of this title (relating to 
Informal Proceedings and Agreed Disposition). 

sec.213.21.Agreed Disposition. 
Informal proceedings, complaints and formal charges may be resolved by 
stipulation, agreed settlement, agreed order, or dismissal pursuant to Texas 
Civil Statutes, Article 4525.3. 

sec.213.22. Formal Proceedings.
(a) Formal administrative hearings in contested cases shall be conducted in 
accordance with the APA by an ALJ assigned by the SOAH. Jurisdiction over the 
case is acquired by the SOAH when the staff files a Request to Docket Case Form 
accompanied by legible copies of all pertinent documents, including but not 
limited to the complaint, petition, application, or other document describing 
the agency action giving rise to a contested case. 
(b) When a case has been docketed before the SOAH, board staff shall provide a 
notice of hearing to all parties in accordance with sec.2001.052, Government 
Code and shall include copies of all applicable statutes and rules as well as a 
specific citation to 1 TAC Chapter 155. 
(c) In disciplinary cases, the respondent shall enter an appearance by filing a 
written answer or other responsive pleading with the SOAH, with a copy to staff, 
within 20 days of the date on which the notice of hearing is served to the 
respondent. 
(d) For purposes of this section, an entry of appearance shall mean the filing 
of a written answer or other responsive pleading. 
(e) The failure of the respondent to timely enter an appearance as provided in 
this section shall entitle the staff to a continuance at the time of the hearing 
in the contested case for such reasonable period of time as determined by the 
ALJ. 
(f) The notice of hearing provided to a respondent for a contested case shall 
include the following language in capital letters in 10-point bold face type: 
FAILURE TO ENTER AN APPEARANCE BY FILING A WRITTEN ANSWER OR OTHER RESPONSIVE 
PLEADING TO THE FORMAL CHARGES WITHIN 20 DAYS OF THE DATE THIS NOTICE WAS 
MAILED, SHALL ENTITLE THE STAFF TO A CONTINUANCE AT THE TIME OF THE HEARING. 
(g) If a respondent fails to appear in person or by attorney on the day and at 
the time set for hearing in a contested case, regardless of whether an 
appearance has been entered, the ALJ, pursuant to the SOAH's rules, the written 
motion of the staff, and adequate proof that proper notice under the APA and the 
SOAH rules was served upon the defaulting party, shall enter a default judgment 
in the matter adverse to the respondent. Such notice shall have included in 10-
point, bold faced type, the fact that upon failure of the party to appear at the 
hearing, the factual allegations in the notice will be deemed admitted as true 
and the relief sought in the proposed recommendation by the staff shall be 
granted by default. 
(h) Any default judgment granted under this section will be entered on the basis 
of the factual allegations in the formal charges contained in the notice of 
hearing, and upon proof of proper notice to the respondent. For purposes of this 
section, proper notice means notice sufficient to meet the provisions of the 
Government Code, sec.sec.2001.051, 2001.052, and 2001.054, as well as sec.213.10 
of this title (relating to Notice and Service). Such notice of hearing also 
shall include the following language in capital letters in 10-point boldface 
type: FAILURE TO APPEAR AT THE HEARING IN PERSON OR BY LEGAL REPRESENTATIVE, 
REGARDLESS OF WHETHER AN APPEARANCE HAS BEEN ENTERED, WILL RESULT IN THE 
ALLEGATIONS CONTAINED IN THE FORMAL CHARGES BEING ADMITTED AS TRUE AND THE 
PROPOSED RECOMMENDATION OF STAFF SHALL BE GRANTED BY DEFAULT.
(i) A motion to vacate a default judgment rendered by the ALJ must be filed 
within 10 days of service of notice of the default judgment.
(1) The motion to vacate the default judgment shall be granted if movant proves 
by the preponderance of the evidence that the failure to attend the hearing was 
not intentional or the result of conscious indifference, but due to accident or 
mistake. 
(2) If the motion to vacate the default judgment is granted, it shall be the 
responsibility of the parties to either settle the matter informally or to 
request a rehearing on the merits. Whenever possible, the rehearing of the case 
shall occur with the ALJ that heard the default matter.
(j) Because of the often voluminous nature of the records properly received into 
evidence by the ALJ, the party introducing such documentary evidence may 
paginate each such exhibit or flag pertinent pages in each such exhibit in order 
to expedite the hearing and the decision-making process.
(k) The schedule of sanctions set out in the NPA is adopted by the Board, and 
the ALJ shall use such sanctions as well as any sanctions adopted by the Board 
by rule. 
(l) Within a reasonable time after the conclusion of the hearing, the ALJ shall 
prepare and serve on the parties a proposal for decision that includes the ALJ's 
findings of fact and conclusions of law and a proposed order recommending a 
sanction to be imposed, if any. 
(m) Each hearing will be recorded by a court reporter. The cost of the 
transcription of the statement of facts shall be borne by the party requesting 
the transcript and said request shall be sent directly to the court reporter and 
the requesting party shall notify the other party in writing of the request. 
(n) A party who appeals a final decision of the Board shall pay all of the costs 
of preparation of the original and any certified copy of the record of the 
proceeding that is required to be transmitted to the reviewing court. 
(1) The record in a contested case shall consist of the following:
(A) all pleadings, motions, intermediate rulings; 
(B) all evidence received or considered by the ALJ; 
(C) a statement of the matters officially noticed; 
(D) questions and offers of proof, objections, and rulings thereon; 
(E) proposed findings and exceptions; 
(F) any decision, opinion, or report by the ALJ presiding at the hearing; 
(G) all staff correspondence submitted to the ALJ in connection with his or her 
consideration of the case; and 
(H) the transcribed statement of facts (Q & A testimony) from the hearing unless 
the parties have stipulated to all or part of the statement of facts. 
(2) Calculation of costs for preparation of the record shall be governed by the 
same procedure utilized by the Board in preparing documents responsive to open 
records requests pursuant to the Public Information Act. These costs shall 
include, but not be limited to, the cost of research, document retrieval, 
copying, and labor.

sec. 213.23.Decision of the Board. 
(a) Except as to those matters expressly delegated to the executive director for 
ratification, either the Board or the Eligibility and Disciplinary Committee, 
may make final decisions in all matters relating to the granting or denial of a 
license or permit, discipline, temporary suspension, or administrative and civil 
penalties. 
(b) Any party of record who is adversely affected by the proposal for decision 
of the ALJ shall have the opportunity to file exceptions and a brief to the 
proposal for decision within 15 days after the date of service of the proposal 
for decision. A reply to the exceptions may be filed by the other party within 
15 days of the filing of the exceptions. Exceptions and replies shall be filed 
with the ALJ with copies served on the opposing party. The proposal for decision 
may be amended by the ALJ pursuant to the exceptions, replies, or briefs 
submitted by the parties without again being served on the parties. 
(c) The proposal for decision may be acted on by the Board, or the Eligibility 
and Disciplinary Committee, after the expiration of 10 days after the filing of 
replies to exceptions to the proposal for decision.
(d) It is the policy of the Board to change a finding of fact or conclusion of 
law in a proposal for decision or to vacate or modify the proposed order of an 
ALJ when, the Board determines: 
(1) that the ALJ did not properly apply or interpret applicable law, agency 
rules, written policies provided by staff or prior administrative decisions; 
(2) that a prior administrative decision on which the ALJ relied is incorrect or 
should be changed; or 
(3) that a technical error in a finding of fact should be changed. 
(e) If the Board modifies, amends, or changes the recommended order of the ALJ, 
an order shall be prepared reflecting the Board's changes as stated in the 
record of the meeting and stating the specific reasons for the changes made 
according to subsection (d) of this section. 
(f) An order of the Board shall be in writing and shall be signed by the 
executive director on behalf of the Board. 
(g) A copy of the order shall be mailed to all parties and to the party's last 
known employer as a professional nurse. 
(h) The decision of the Board is immediate, final and appealable upon the 
signing of the written order by the executive director on behalf of the Board 
where: 
(1) the Board finds and states in the order that an imminent peril to the public 
health, safety, and welfare requires immediate effect of the order; and 
(2) the order states it is final and effective on the date rendered. 
(i) A motion for rehearing shall not be a prerequisite for appeal of the 
decision where the order of the Board contains the finding set forth in 
subsection 
(h) of this section. 
(j) Motions for rehearing are controlled by Texas Government Code sec.2001.145. 

sec.213.24. Rescission of Probation.
(a) At least 20 days prior to a hearing to rescind probation, the probationer 
shall be served with written notice of the allegations supporting rescission of 
the probation. 
(b) The hearing shall be conducted in accordance with sec.213.22 of this title 
(relating to Formal Proceedings), and the decisions of the Board shall be 
rendered in accordance with sec.213.23 of this title (relating to Decision of 
the Board).

sec.213.25.Monitoring. 
(a) The Board shall identify and monitor licensees who present a risk to the 
public and who are subject to Board orders. The monitoring system shall track at 
least the name, license number, address, employer, and any other information 
necessary to demonstrate compliance or non-compliance with an order of the 
Board. 
(b) Monitored licensees will pay a monthly fee as stated in the Board order. 
Said fee shall be paid on or before the 5th of each month.

sec.213.26.Reissuance of a License.
(a) A person whose license to practice professional nursing in this state has 
been revoked, suspended or surrendered, may apply for reinstatement of the 
license. In the case of revocation, petition shall not be made prior to one year 
after the effective date of the revocation. The Board may approve or deny a 
petition. In the case of denial, the Board may set a reasonable time that must 
elapse before another petition may be filed. The Board may impose reasonable 
conditions that a petitioner must satisfy before reinstatement of an 
unencumbered license. 
(b) A petition for reinstatement shall be in writing and in the form prescribed 
by the Board. 
(c) Petitioner's appearance at any hearing concerning reinstatement of a license 
shall be in person unless otherwise approved by the executive director. 
(d) The burden of proof is on the petitioner to prove present fitness to 
practice as well as compliance with all terms and conditions imposed as a part 
of any revocation, surrender or suspension. A reinstated license may be limited 
or a stipulated license may be issued. If petition for reinstatement is denied, 
Petitioner may request an ALJ hearing. 
(e) In considering reinstatement of a surrendered, suspended or revoked license, 
the Board will evaluate: 
(1) the conduct which resulted in voluntary surrender, suspension, or revocation 
of the license; 
(2) the conduct of the petitioner subsequent to the suspension, revocation, or 
acceptance of surrender of license; 
(3) the lapse of time since suspension, revocation, or acceptance of surrender; 
(4) compliance with all conditions imposed by the Board as a prerequisite for 
issuance of the license; and 
(5) the petitioner's present qualification to practice professional nursing 
based on his or her history of nursing related employment or education. 

sec.213.27. Good Professional Character.
(a) Good professional character is the integrated pattern of personal, academic 
and occupational behaviors which, in the judgment of the Board, indicates that 
an individual is able to consistently conform his or her conduct to the 
requirements of the Nursing Practice Act, the Board's rules and regulations, and 
generally accepted standards of nursing practice including, but not limited to, 
behaviors indicating honesty, accountability, trustworthiness, reliability and 
integrity. 
(b) Factors to be used in evaluating good professional character in eligibility 
and disciplinary matters are: 
(1) Good professional character is determined through the evaluation of 
behaviors demonstrated by an individual in his or her personal, academic and 
occupational history. An individual's age, education and experience necessarily 
affect the nature and extent of behavioral history; and, therefore shall be 
considered in each evaluation. 
(2) A person who seeks to obtain or retain a license to practice professional 
nursing shall provide evidence of good professional character which, in the 
judgment of the Board, is sufficient to insure that the individual can 
consistently act in the best interest of patients/clients and the public in any 
practice setting. Such evidence shall establish that the person: 
(A) is able to distinguish right from wrong; 
(B) is able to think and act rationally; 
(C) is able to keep promises and honor obligations; 
(D) is accountable for his or her own behavior; 
(E) is able to practice nursing in an autonomous role with patients/cli- ents, 
their families and significant others and members of the public who are or who 
may become physically, emotionally or financially vulnerable;
(F) is able to recognize and honor the interpersonal boundaries appropriate to 
any therapeutic relationship or health care setting; and 
(G) is able to promptly and fully self-disclose facts, circumstances, events, 
errors and omissions when such disclosure could enhance the health status of 
patients/clients or the public or could protect patients/clients or the public 
from unnecessary risk of harm. 

sec.213.28. Licensure of Persons with Criminal Convictions. 
(a) This section sets out the considerations and criteria on the eligibility of 
persons with criminal convictions to obtain a license as a registered nurse or 
those already licensed who renew their license. The Board may refuse to approve 
persons to take the licensure examination, may refuse to issue or renew a 
license or certificate of registration, or may refuse to issue a temporary 
permit to any individual that has been convicted of a felony, a misdemeanor 
involving moral turpitude, or engaged in conduct resulting in the revocation of 
probation imposed pursuant to such a conviction.
(b) The practice of nursing involves clients, their families, significant others 
and the public in diverse settings. The registered nurse practices in an 
autonomous role with individuals who are physically, emotionally and financially 
vulnerable. The nurse has access to personal information about all aspects of a 
person's life, resources and relationships. Therefore, criminal behavior whether 
violent or non-violent, directed against persons, property or public order and 
decency is considered by the Board as highly relevant to an individual's fitness 
to practice nursing. 
(c) In considering whether a criminal conviction renders the individual 
ineligible for licensure or renewal of licensure as a registered nurse, the 
Board shall consider: 
(1) the knowing or intentional practice of professional nursing without a 
license issued under the NPA; 
(2) any felony or misdemeanor involving moral turpitude;
(3) the nature and seriousness of the crime; 
(4) the relationship of the crime to the purposes for requiring a license to 
engage in professional nursing practice; 
(5) the extent to which a license might offer an opportunity to engage in 
further criminal activity of the same type as that in which the person 
previously had been involved; and 
(6) the relationship of the crime to the ability, capacity, or fitness required 
to perform the duties and discharge the responsibilities of professional nursing 
practice. 
(d) In addition to the factors that may be considered under subsection (c) of 
this section, the Board, in determining the present fitness of a person who has 
been convicted of a crime, shall consider: 
(1) the extent and nature of the person's past criminal activity;
(2) the age of the person at the time of the commission of the crime; 
(3) the amount of time that has elapsed since the person's last criminal 
activity; 
(4) the conduct and work activity of the person prior to and following the 
criminal activity; 
(5) evidence of the person's rehabilitation or rehabilitative effort while 
incarcerated or following release; and 
(6) other evidence of the person's present fitness, including letters of 
recommendation from: prosecutional, law enforcement, and correctional officers 
who prosecuted, arrested, or had custodial responsibility for the person; the 
sheriff or chief of police in the community where the person resides; and any 
other persons in contact with the convicted person. 
(e) It shall be the responsibility of the applicant to secure and provide to the 
Board the recommendations of the prosecution, law enforcement, and correctional 
authorities as required under this Act. The applicant shall also furnish proof 
in such form as may be required by the licensing authority that he or she has 
maintained a record of steady employment and has supported his or her dependents 
and has otherwise maintained a record of good conduct and has paid all 
outstanding court costs, supervision fees, fines, and restitution as may have 
been ordered in all criminal cases in which he or she has been convicted. 
(f) If requested by staff, it shall be the responsibility of the individual 
seeking licensure to ensure that staff is provided with legible, certified 
copies of all court and law enforcement documentation from all jurisdictions 
where the individual has resided or practiced as a licensed health care 
professional. Failure to provide complete, legible and accurate documentation 
will result in delays prior to licensure or renewal of licensure and possible 
grounds for ineligibility. 
(g) Behavior that would otherwise bar or impede licensure may be deemed a 
"Youthful Indiscretion" as determined by an analysis of the behavior using the 
factors set out in sec.213.27 of this title (relating to Good Professional 
Character), subsections (a)-(e) of this section and at least the following 
criteria: 
(1) age of 22 years or less at the time of the behavior; 
(2) absence of criminal plan or premeditation; 
(3) presence of peer pressure or other contributing influences;
(4) absence of adult supervision or guidance; 
(5) evidence of immature thought process/judgment at the time of the activity; 
(6) evidence of remorse; 
(7) evidence of restitution to both victim and community;
(8) evidence of current maturity and personal accountability;
(9) absence of subsequent undesirable conduct; 
(10) evidence of having learned from past mistakes; 
(11) evidence of current support structures that will prevent future criminal 
activity; and 
(12) evidence of current ability to practice professional nursing in accordance 
with the Nursing Practice Act, Board rules and generally accepted standards of 
professional nursing. 

sec.213.29. Criteria and Procedure Regarding Intemperate Use and Lack of Fitness 
in Eligibility and Disciplinary Matters. 
(a) A person desiring to obtain or retain a license to practice professional 
nursing shall provide evidence of current sobriety and fitness.
(b) Such person shall provide a sworn certificate to the Board stating that 
he/she has read and understands the requirements for licensure as a registered 
nurse and that he/she has not: 
(1) within the past five years, become addicted to or treated for the use of 
alcohol or any other drug; or 
(2) within the past five years, been diagnosed with, treated or hospitalized for 
schizophrenia and/or other psychotic disorders, major depression, bi-polar 
disorder, paranoid personality disorder, antisocial personality disorder or 
borderline personality disorder. 
(c) Such person, if unable to sign the certification in subsection (b) of this 
section, shall execute an authorization for release of medical, psychiatric and 
treatment records in relation to the conditions mentioned in subsection (b) of 
this section. 
(d) Such person shall submit to and pay for an evaluation by a professional 
approved by the executive director to determine current sobriety and fitness. 
The evaluation shall be limited to the conditions mentioned in subsection (b) of 
this section. 
(e) Prior intemperate use or mental illness is relevant only so far as it may 
indicate current intemperate use or lack of fitness. 
(f) No license shall be denied under this rule unless it is shown that the 
person seeking to obtain or retain the license poses a direct threat to the 
health and safety of patients/clients, their families or significant others or 
the public. 
(g) With respect to chemical dependency in eligibility and disciplinary matters, 
the executive director is authorized to: 
(1) review submissions from a movant, materials and information gathered or 
prepared by staff, and identify any deficiencies in file information necessary 
to determine the movant's request; 
(2) close any eligibility file in which the movant has failed to respond to a 
request for information or to a proposal for denial of eligibility within 60 
days thereof; 
(3) approve eligibility, enter eligibility orders and approve renewals, without 
board ratification, when the evidence is clearly insufficient to prove a ground 
for denial of licensure; and 
(4) propose conditional orders in eligibility, disciplinary and renewal matters 
for individuals who have experienced chemical/alcohol dependency within the past 
five years provided: 
(A) the individual presents reliable and verifiable evidence of having 
functioned in a sober/abstinent manner for twelve consecutive months; and 
(B) licensure limitations/stipulations and/or peer assistance program 
participation can be implemented which will ensure that patients and the public 
are protected until the individual has attained a five-year term of 
sobriety/abstinence. 
(h) With respect to mental illness in eligibility, disciplinary, and renewal 
matters, the executive director is authorized to propose conditional orders for 
individuals who have experienced mental illness within the past five years 
provided: 
(1) the individual presents reliable and verifiable evidence of having 
functioned in a manner consistent with the behaviors required of nurses under 
the Nursing Practice Act and Board rules for at least twelve consecutive months; 
and, 
(2) licensure limitations/stipulations and/or peer assistance program 
participation can be implemented which will ensure that patients and the public 
are protected until the individual has attained a five-year term of controlled 
behavior and consistent compliance with the requirements of the Nursing Practice 
Act and Board rules. 
(i) In renewal matters involving chemical dependency or mental illness, the 
executive director shall consider the following information from the preceeding 
renewal period: 
(1) evidence of the licensee's safe practice; 
(2) compliance with the NPA and Board rules; and 
(3) written verification of compliance with any treatment.
(j) Upon receipt of items (i)(1)-(3) of this section, the executive director may 
renew the license. 

sec.213.30. Declaratory Order of Eligibility for Licensure. 
(a) An individual enrolled or planning to enroll in a basic nursing program who 
has reason to believe that he or she may be ineligible for licensure, may 
petition the Board for a declaratory order as to his or her eligibility. 
(b) The individual must submit a petition on forms provided by the Board which 
includes: 
(1) a statement by the individual indicating the reason(s) and basis of 
potential ineligibility; 
(2) if the potential ineligibility is due to criminal conviction, any court 
documents including, but not limited to, any indictments, judgments, probation 
records and evidence of completion of probation, if applicable;
(3) if the potential ineligibility is due to mental illness, evidence of 
evaluation, including a prognosis, by a psychologist or psychiatrist, evidence 
of treatment, including any medication; 
(4) if the potential ineligibility is due to chemical dependency including 
alcohol, evidence of evaluation and treatment, after care and support group 
attendance; and 
(5) the required fee which is not refundable. 
(c) An investigation of the petition and the individual's eligibility shall be 
conducted. 
(d) The petitioning individual or the Board may amend the petition at any time 
before a final determination is made. 
(e) If the executive director proposes to find the petitioning individual 
ineligible for licensure, the petitioner may obtain a hearing before an ALJ by 
making such a request in writing to the executive director. The hearing shall be 
conducted in accordance with sec.213.22 of this title (relating to Formal 
Proceedings) and the rules of the SOAH. When in conflict, the SOAH rules 
governing hearing procedure will prevail. The decision of the Board shall be 
rendered in accordance with sec.213.23 of this title (relating to Decision of 
the Board).

sec.213.31. Cross Reference of Rights and Options Available to Licensees and 
Petitioners.
Licensees subject to disciplinary action and petitioners seeking a determination 
of licensure eligibility have certain rights and options available to them in 
connection with these mechanisms. For example, licensees or petitioners have the 
right to request information in the Board's possession, including information 
favorable to licensee or petitioner, and the option to be represented by an 
attorney at their own expense. The following is a list of references to 
provisions of the Nursing Practice Act and the Board's rules addressing these 
rights and options and related matters. Persons with matters before the Board 
should familiarize themselves with these provisions: 
(1) Article 4519a - Declaratory Order of Eligibility; 
(2) Article 4524A - Records of Complaints; 
(3) Article 4524B - Complaint Investigation and Disposition;
(4) Article 4524C - Informal Proceedings; 
(5) Article 4524D - Monitoring of Licensees; 
(6) Article 4525 - Disciplinary Proceedings, including Grounds for Discipline; 
(7) Article 4525.1 - Penalties and Sanctions; 
(8) Article 4525.2 - Complaint and Investigation; 
(9) Article 4525.3 - Agreed Disposition; 
(10) Article 4525.4 - Rights of a Registered Nurse; 
(11) Article 4525.5 - Initiation of Formal Charges; 
(12) Article 4525.6 - Hearings; 
(13) Article 4525d - Protection for Refusal to Engage in Certain Conduct 
(14) Article 4525e - Temporary Suspension of License;
(15) Rule 217.11 - Standards of Professional Nursing;
(16) Rule 217.13 - Unprofessional Conduct Rules; and
(17) Rule 213 - Practice and Procedure Rules.

sec.213.32. Schedule of Fines. 
In disciplinary matters, the Board may assess a monetary fine in the 
circumstances and amounts as described. 
(1) The following violations may be appropriate for disposition by fine with or 
without educational stipulations: 
(A) practice on a delinquent license for more than six months but less than two 
years: 
(i) first occurrence: $250; 
(ii) subsequent occurrence: $500; 
(B) practice on a delinquent license for two to four years:
(i) first occurrence: $500; 
(ii) subsequent occurrence: $1,000; 
(C) practice on a delinquent license over four years: $1,000 plus $250 for each 
year over four years; 
(D) aiding, abetting or permitting a registered nurse to practice on a 
delinquent license: 
(i) first occurrence: $100 - $500; 
(ii) subsequent occurrence: $200 - $1,000; 
(E) failure to comply with CE requirements: 
(i) first occurrence: $100; 
(ii) subsequent occurrence: $250; 
(F) failure to comply with mandatory reporting requirements:
(i) first occurrence: $100 - $500; 
(ii) subsequent occurrence: $200 - $1,000; 
(G) failure to assure licensure/credentials of personnel for whom the nurse is 
administratively responsible: 
(i) first occurrence: $100 - $500; 
(ii) subsequent occurrence: $200 - $1,000; 
(H) failure to provide employers, potential employers, or the Board with 
complete and accurate answers to either oral or written questions on subject 
matters including but not limited to: employment history, licensure history, and 
criminal history: 
(i) first occurrence: $200 - $800; 
(ii) second occurrence: $500 - $1000; 
(I) failure to report unauthorized practice: 
(i) first occurrence: $100 - $500; 
(ii) subsequent occurrence: $200 - $1,000; 
(J) failure to comply with Board requirements for change of name/address: 
(i) first occurrence: $100; 
(ii) subsequent occurrence: $150; 
(K) failure to develop, maintain and implement a peer review plan according to 
statutory peer review requirements: 
(i) first occurrence: $100 - $1,000; 
(ii) subsequent occurrence: $500 - $1,000; 
(L) failure to file, or cause to be filed, complete, accurate and timely reports 
required by Board order: 
(i) first occurrence: $100; 
(ii) subsequent occurrence: $250; 
(M) failure to make complete and timely compliance with the terms of any 
stipulation contained in a Board order: 
(i) first occurrence: $100; 
(ii) subsequent occurrence: $250; 
(N) failure to report patient abuse to the appropriate authority of the State of 
Texas, including but not limited to, providing inaccurate or incomplete 
information when requested from said authorities: 
(i) first occurrence: $500; 
(ii) second occurrence: $1000 - $5000; and 
(O) other non-compliance with the NPA, Board rules or orders which does not 
involve fraud, deceit, dishonesty, intentional disregard of the NPA, Board 
rules, Board orders, harm or substantial risk of harm to patients, clients or 
the public: 
(i) first occurrence: $100 - $500; 
(ii) subsequent occurrence: $200 - $1,000. 
(2) The following violations may be appropriate for disposition by fine in 
conjunction with one or more of the penalties/sanctions listed in Texas Civil 
Statutes, Article 4525.1: 
(A) violations other than those listed in paragraph (1)(A)-(N) of this section: 
(i) first occurrence: $100 - $1,000; 
(ii) subsequent occurrence: $200 - $1,000; and 
(B) a cluster of violations listed in paragraph (1)(A)-(O) of this section: $100 
- $5,000. 
(3) The executive director is authorized to dispose of violations listed in 
paragraph (1)(A)-(O) of this section, by fine, or by a combination of fine and 
stipulations for education, which shall be effective without ratification by the 
Board. The executive director shall report such cases to the Board at its 
regular meetings. 

sec.213.33. Penalty/Sanction Factors.
(a) The following factors shall be considered by the executive director when 
determining whether to dispose of a disciplinary case by fine or by fine and 
educational stipulation and the amount of such fine. These factors shall be used 
by the State Office of Administrative Hearings and the Board in determining the 
appropriate penalty/sanction in disciplinary cases:
(1) evidence of actual or potential harm to patients, clients or the public; 
(2) evidence of a lack of truthfulness or trustworthiness;
(3) evidence of misrepresentation(s) of knowledge, education, experience, 
credentials or skills which would lead a member of the public, an employer, a 
member of the health-care team, or a patient to rely on the fact(s) 
misrepresented where such reliance could be unsafe; 
(4) evidence of practice history; 
(5) evidence of present lack of fitness; 
(6) evidence of prior disciplinary history by the Board or any other health care 
licensing agency in Texas or another jurisdiction;
(7) the length of time the licensee has practiced; 
(8) the actual damages, physical or otherwise, resulting from the violation; 
(9) the deterrent effect of the penalty imposed; 
(10) attempts by the licensee to correct or stop the violation; 
(11) any mitigating or aggravating circumstances; and
(12) the extent to which system dynamics in the practice setting contributed to 
the problem. 
(b) Each specific act or instance of conduct may be treated as a separate 
violation. 
(c) Unless otherwise specified, fines shall be payable in full by cashier's 
check or money order not later than the 45th day following the entry of an 
Order. 
(d) The payment of a fine shall be in addition to the full payment of all 
applicable fees and satisfaction of all other applicable requirements of the NPA 
and the Board's rules. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 17, 1998.
TRD-9805388
Katherine A. Thomas, MN, RN
Executive Director
Board of Nurse Examiners
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 305-6811

PART XVII. Texas State Board of Plumbing Examiners
CHAPTER 361.Definitions
22 TAC sec.361.1
The Texas State Board of Plumbing Examiners proposes an amendment to sec.361.1. 
This section specifies the meanings of words and terms used in the Plumbing 
License Law and Board Rules. 
James Fowler, Chief Fiscal Officer, Texas State Board of Plumbing Examiners, has 
determined that for the first five-year period the rule is in effect there will 
be no effect to state or local government as a result of enforcing the rule. 
Mr. Fowler has determined that each year of the first five years the rule is in 
effect the public benefit will be to clarify exactly what a plumbing inspection 
is and that the Plumbing License Law requires that plumbing inspections be 
performed by a licensed plumbing inspector in municipalities of 5,000 or more 
inhabitants or in municipalities that have voluntarily adopted the Plumbing 
License Law by ordinance. There will be no effect on small businesses. There is 
no economic cost to the persons having to comply with the rule as proposed. 
Comments on the proposed rule change may be submitted to Gilbert Kissling, 
Administrator, Texas State Board of Plumbing Examiners, 929 East 41st Street, 
P.O. Box 4200, Austin 78765-4200. 
The amendment to Sec 361.1 is proposed under and effect Texas Revised Civil 
Statutes Annotated Article 6243-101, Sec. 2(1), Sec. 2(5), Sec. 5(a) and Sec. 
14(a) and Sec. 15(a) (Vernon Supp. 1998). 
No other statute, article, or code is affected by this proposed amendment.

sec.361.1.Definitions. 
The following words and terms, when used in this part, have the following 
meanings, unless the context clearly indicates otherwise:
<nl>(1)<ol> Act - The Plumbing License Law, Texas Civil Statutes, article 6243-
101, as amended. Administrative Act - The Administrative Procedure and Texas 
Register Act, Texas Civil Statutes, article 6252-13a, as amended. 
<nl>(2)<ol> Administrator - The Board-appointed executive head of the 
administrative staff. 
<nl>(3)<ol> Agency - Any board, commission, department, or officer having 
statewide jurisdiction to make rules or determine contested cases other than an 
agency wholly financed by federal funds, the legislature, the courts, the 
Industrial Accident Board, and institutions of higher education.
<nl>(4)<ol> Appliance Connection - A minor appliance connection procedure that 
does not require cutting into existing piping. 
<nl>(5)<ol> Applicant - An individual seeking to obtain a license or 
endorsement. 
<nl>(6)<ol> Board - The Texas State Board of Plumbing Examiners. 
<nl>(7)<ol> Board Member - An individual appointed by the governor and confirmed 
by the senate to serve on the board. 
<nl>(8)<ol> Code - The Texas Administrative Code, as provided in Texas Civil 
Statutes, article 6252-13b, as amended. 
<nl>(9)<ol> Complaint - A written charge alleging: violation of state law, Board 
rules or orders, local codes or ordinances, or standards of competency; or the 
presence of fraud, false information, or error in the attempt to obtain a 
license or endorsement. 
<nl>(10)<ol> Contested Case - A proceeding, including but not limited to 
rulemaking and licensing, in which the agency determines the legal right, 
duties, and privileges of a party after allowing an opportunity for adjudicative 
hearing of the case. 
<nl>(11)<ol> Continuing Professional Education - Board-approved courses/programs 
necessary for a plumber to renew his or her license; such courses/programs shall 
update and expand plumbers' knowledge of plumbing, new laws, codes, technology, 
conservation, and health, safety, environmental requirements. 
<nl>(12)<ol> Endorsement - a certification issued by the board in addition to 
the master or journeyman plumber license. 
<nl>(13)<ol> Field Representative - An individual: informed and knowledgeable 
about the plumbing act and related municipal ordinances; trained and experienced 
in good plumbing practice; employed and designated by the board as qualified to 
assist in the enforcement of this act and rules adopted under it. 
<nl>(14)<ol> Hardship - A set of circumstances that warrants the Board's 
consideration of waivers or special procedures. 
<nl>(15)<ol> Journeyman Plumber - An individual other than a master plumber who: 
supervises over, engages in, or works at the actual installation, alteration, 
repair, service, or renovation of plumbing; and has successfully completed the 
examinations and met the Board's requirements for journeyman status. 
<nl>(16)<ol> License - A document issued by the Board to certify that the cited 
person fulfilled the requirements of the act and of these rules. 
<nl>(17)<ol> Licensing - The process of granting, denying, renewing, revoking , 
or suspending a license or endorsement. 
<nl>(18)<ol> Maintenance Man or Maintenance Engineer - An employee, as opposed 
to an independent contractor, who performs plumbing maintenance work incidental 
to and in connection with other duties. "Incidental to and in connection with" 
includes the repair, maintenance and replacement of existing potable water 
piping, existing sanitary waste and vent piping, existing plumbing fixtures and 
existing water heaters. "Incidental to and in connection with" does not include 
cutting into fuel gas plumbing systems and the installation of gas fueled water 
heaters. A person who erects, builds, or installs plumbing not already in 
existence may not be classified as a maintenance man or maintenance engineer. 
Plumbing work performed by a maintenance man or maintenance engineer is not 
exempt from state law and municipal rules and ordinances regarding plumbing 
codes, plumbing permits and plumbing inspections. Such maintenance persons shall 
not engage in plumbing work for the general public. 
<nl>(19)<ol> Master Plumber - An individual: skilled in the planning, 
superintending, and the practical installation, repair, alteration, service, and 
renovation of plumbing; familiar with the codes, ordinances, laws, and rules 
governing plumbing matters and authorized to obtain permits for the undertaking 
of plumbing installation or service; successful in completing the examinations 
and meeting the Board's requirements for master plumber status.
<nl>(20)<ol> Medical Gas Piping Installation Endorsement - a document entitling 
the holder of a master or journeyman plumber license to install pipe used solely 
to transport gases used for medical purposes.
<nl>(21)<ol> Medical Gas Piping Technician - a master or journeyman plumber who 
holds a medical gas piping installation endorsement.
<nl>(22)<ol> Party - Each person named or admitted in association with an action 
as a party. 
<nl>(23)<ol> Person - An individual, partnership, corporation, association, 
governmental subdivision, or public or private organization of any character 
other than an agency. 
<nl>(24)<ol> Petitioner - A person asking the Board to adopt a rule. 
<nl>(25)<ol> Plumbing - All piping, fixtures, appurtenances, and appliances, 
including disposal systems, drain or waste pipes, or any combination of these 
that: supply, recirculate, drain, or eliminate water, gas, liquids, and sewage 
for all personal or domestic purposes in and about buildings where persons live, 
work, or assemble; connect the building on its outside with the source of water, 
gas, or other liquid supply, or combinations of these, on the premises, or the 
water main on public property; and carry waste water or sewage from or within a 
building to the sewer service lateral on public property or the disposal or 
septic terminal that holds private or domestic sewage. The installation, repair, 
service, maintenance, alteration, or renovation of all piping, fixtures, 
appurtenances, and appliances on premises where persons live, work, or assemble 
that supply gas, water, liquids, or any combination of these, or dispose of 
waste water or sewage. 
<nl>(26)<ol> Plumbing Company - A business which engages in plumbing work. There 
is no criteria other than the performance of plumbing work that will designate a 
business a plumbing company. 
<nl>(27)<ol> Plumbing Inspector - An individual with no financial or advisory 
interests in any plumbing company who: is employed by a political subdivision to 
check plumbing work for compliance with health and safety laws and ordinances; 
and has successfully completed the examinations and met the Board's requirements 
for plumbing inspector status. 
<nl>(28)<ol> <nl>Plumbing Inspection - an inspection or check of any plumbing 
work or plumbing installation that is required by any adopted plumbing code, 
local ordinance, state law, or rule to determine compliance with any adopted 
plumbing code, local ordinance, state law, or rule. Plumbing inspections 
performed within the municipal limits of any organized city, town or village of 
five thousand (5,000) or more inhabitants, or within the limits of any city, 
political subdivision, or municipal utility district that has adopted the 
Plumbing License Law by ordinance, must be performed by a plumbing inspector 
that is licensed as such by the Board. <ol>
<nl>(29)<ol> Pocket Card - A card issued by the Board which certifies that the 
holder has a plumbing license. 
<nl>(30)<ol> Registered Plumbing Apprentice - An individual other than a master 
plumber or journeyman plumber whose principal occupation is learning about and 
assisting in the installation of plumbing. A registered plumbing apprentice may 
assist a licensed journeyman or master plumber with a medical gas endorsement in 
the installation of medical gas systems, however, he or she may do so only under 
the direct supervision and within sight of the endorsee. The registered plumbing 
apprentice may not braze, assemble, nor install required pipe markings. 
<nl>(31)<ol> Regularly Employed - Steadily, uniformly, or habitually working in 
an employer-employee relationship with a view of earning a livelihood, as 
opposed to working casually or occasionally. 
<nl>(32)<ol> Respondent - A person charged in a complaint filed with the Board. 
<nl>(33)<ol> Responsible Master Plumber - A responsible master plumber is the 
master that allows his Master Plumber License to be used by a company for the 
purpose of performing plumbing work and obtaining the required plumbing permits. 
The master by allowing his license to be used in this manner assumes 
responsibility for all plumbing work performed. 
<nl>(34)<ol> Roster of Licensees - A statewide directory giving the names and 
addresses of currently licensed master plumbers, journeyman plumbers, and 
plumbing inspectors, and any other information deemed pertinent by the Board. 
<nl>(35)<ol> Rule - An agency statement of general applicability that 
implements, interprets, or prescribes law or policy, or describes the procedure 
or practice requirements of the agency. The term includes the amendment or 
repeal of a prior rule but does not include statements concerning only the 
internal management or organization of the agency and not affecting private 
rights or procedures. 
<nl>(36)<ol> System - An interconnection between one or more public or private 
end users of water, gas, sewer, or disposal systems that could endanger public 
health if improperly installed. 
<nl>(37)<ol> Water Supply Protection Specialist - a master or journeyman plumber 
who holds an endorsement issued by the Board to inspect plumbing work or 
installation of a public water system distribution facility or customer-owned 
plumbing connected to that system s water distribution lines. The purpose of 
this inspection shall be to ensure compliance with health and safety and water 
protection law. 
<nl>(38)<ol> Water Treatment - A business conducted under contract to analyze, 
then alter or purify influent or effluent water by adding or removing a mineral, 
chemical, or bacterial content or substance. The term includes the installation, 
exchange, servicing, or repair of fixed or portable water treatment equipment or 
connections necessary to the installation of such equipment in public or private 
water treatment systems. 
<nl>(39)<ol> Water Treatment Certificate - A document issued by the Texas 
Natural Resource Conservation Commission certifying that the named person 
complies with department rules for engaging in water treatment.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 15, 1998.
TRD-9805241
Robert L. Maxwell
Chief of Field Services/Investigations
Texas State Board of Plumbing Examiners
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 458-2145

TITLE 25. HEALTH SERVICES
PART I. Texas Department of Health
CHAPTER 1. Texas Board of Health
SUBCHAPTER S. Requests for Providing Public Information
The Texas Department of Health (department) proposes the repeal of 
sec.sec.1.251-1.255 and new sec.1.251, concerning procedures for handling 
requests for public information. Specifically the new section describes how the 
department will handle requests for public information under the Public 
Information Act, Government Code, Chapter 552 (Act). The repeal is necessary 
because some of the existing language will be replaced by or clarified in new 
sec.1.251 and other existing language will be moved into the department's 
written policy on charges for records under the Act. Until September 1, 1997, 
sec.552.2611 of the Act required that charges for public records by a State 
agency be specified in rules. That section was repealed by Acts 1997, 75th 
Legislature (House Bill 951); therefore, the department's rules on charges are 
no longer required and charges may be addressed adequately through department 
policy. 
John Burlinson, Acting Chief, Bureau of Support Services, has determined that 
for the first five-year period the proposed section is in effect there will be 
no fiscal implications to state or local government as a result of enforcing or 
administering the section as proposed. 
Mr. John Burlinson has determined that for each year of the first five years the 
proposed section is in effect, the public benefit will be that staff will be 
able to handle public information requests more expediently; and that the policy 
and procedures will be clearly stated so the public can readily understand the 
time frame and the materials needed to comply with their public information 
requests. There is no anticipated cost to persons or small businesses, who may 
be required to comply with the section. There will be no effect on local 
employment. 
Comments on the proposal may be submitted to John Burlinson, Acting Chief, 
Bureau of Support Services, Texas Department of Health, 1100 West 49th Street, 
Austin, Texas 78756, (512) 458-7720. Comments will be accepted for 30 days 
following the date of publication of this proposal in the Texas Register. 

25 TAC sec.sec.1.251-1.255
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Health or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Public Information Act, Government Code, 
sec.552.230 which authorizes a state agency to promulgate reasonable rules of 
procedure under which public information may be inspected and copied 
efficiently, safely, and without delay; and Health and Safety Code, sec.12.001, 
which provides the Board of Health with authority to adopt rules for the 
performance of every duty imposed by law on the Texas Board of Health, the Texas 
Department of Health, and the Commissioner of Health. 
The repeal affects the Government Code, Chapter 552. 
sec.1.251. Definitions. 
sec.1.252. Charges for Providing Copies of Public Information. 
sec.1.253. Access to Information Where Copies are Not Requested. 
sec.1.254. Format for Copies of Public Information.
sec.1.255. Estimates and Waivers of Public Information Charges. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805468
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 458-7236

25 TAC sec.1.251
The new section is proposed under the Public Information Act, Government Code, 
sec.552.230 which authorizes a state agency to promulgate reasonable rules of 
procedure under which public information may be inspected and copied 
efficiently, safely, and without delay; and Health and Safety Code, sec.12.001, 
which provides the Board of Health with authority to adopt rules for the 
performance of every duty imposed by law on the Texas Board of Health, the Texas 
Department of Health, and the Commissioner of Health. 
The new section affects the Government Code, Chapter 552. 

sec.1.251. Procedures for Handling Requests for Public Information. 
(a) The department requires that all public information requests be in writing 
unless there are special circumstances. Program staff may determine whether a 
verbal request may be accepted. 
(b) The program handling the request for public information will review the 
request and determine what records are requested; who is requesting the records; 
whether inspection or actual copies of the records are requested; and whether 
the requested records are open, confidential, or partially open and partially 
confidential. The Office of General Counsel is available to provide assistance 
in making these determinations. 
(c) To the extent possible the department will attempt to accommodate a 
requestor by providing information in the format requested. For example, if a 
requestor asks that information be provided on a diskette and the requested 
information is electronically stored, the department should provide the 
information on diskette. The department is not required to acquire software, 
hardware, or programming capabilities that it does not already possess to 
accommodate a particular kind of request except in accordance with the Public 
Information Act (Act), sec.552.231. 
(d) Provision of a copy of public information in the requested medium must not 
violate the terms of any copyright agreement between the department and a third 
party. 
(e) The program handling the request for public information must have the 
records ready for inspection or copies duplicated within 10 business days after 
the date the department received the request. If the program cannot produce the 
public information for inspection or duplication within 10 business days after 
the date the department received the request, the program will certify that fact 
in writing to the requestor and set a date and hour within a reasonable time 
when the information will be available for inspection or duplication. 
(1) Prior to the end of the 10 business days or the set date and hour, if 
applicable, the program will notify the requestor of the estimated costs if the 
costs will be over $100. 
(2) The program may require a cash deposit on requests for copies of public 
information which are estimated to exceed $100. The breakdown on deposit 
requirements are outlined in the department's operating procedures relating to 
charges for records under the Act. 
(3) All efforts should be made to process requests as efficiently as possible so 
that requested information will be provided at the lowest possible charge. 
(4) Full disclosure must be made to the requesting party as to how the charges 
were calculated. 
(5) All charges for public information in an amount of $100 or more must be paid 
to the department before the public information is actually provided to the 
requestor by inspection or duplication. On orders under $100, the program staff 
have the option to require prepayment before providing the information or they 
have the option to provide the information to the requestor along with a 
specially encoded remittance envelope for return of their payment. 
(6) If a request for information requires programming or manipulation of data 
pursuant to the Act, sec.552.231 and the department's policy established under 
that section, the time frame in this subsection will not apply until the 
requestor files the written statement described in the Act, sec.552.231 (d)(1) 
or (2). Once the written statement is filed, the program handling the request 
shall comply with this subsection. 
(7) When payment is required in advance of providing the public information, 
failure of the requestor to pay the costs of the copies within 30 days of 
notification of the estimated costs, or a longer period of time, if granted by 
the program, will be considered a withdrawal of the request for information. 
(f) The program, at its discretion, may provide public information without 
charge or at a reduced charge if the waiver or reduction of the charge is in the 
public interest, because providing the copies primarily benefits the general 
public, or if the cost for the collection of a charge will exceed the amount of 
the charge. 
(g) The department may set the price for publications it publishes for public 
dissemination or it may disseminate them free of charge. This rule and 
department policy do not limit the costs of departmental publications.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805469
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 458-7236

CHAPTER 103. Injury Prevention and Control
25 TAC sec.sec.103.1-103.4, 103.7, 103.8
The Texas Department of Health (department) proposes amendments to sec.sec.103.1 
- 103.4, 103.7 - 103.8, concerning the reporting and control of traumatic brain 
injuries. Specifically, these amendments implement Chapter 893 of the 75th 
Legislature, including traumatic brain injuries as reportable injuries to the 
department. The amended sections cover purpose; definitions; list of reportable 
conditions; reporting requirements; confidential nature of case reporting; and 
investigations. 
Specifically, the amendment to sec.103.1 adds traumatic brain injuries on the 
list of reportable conditions. The amendment to sec.103.2 adds three new 
definitions (health care entity, state trauma registry, and traumatic brain 
injury) and amends one other (spinal cord injury). The amendment to sec.103.3 
adds traumatic brain injuries to the list of reportable conditions and specifies 
what the reports of injuries may include. The amendment to sec.103.4 clarifies 
the reporting requirements by specifying how submersion, spinal cord and brain 
injuries are to be reported, by whom, and how often; adds rehabilitation 
facilities as sentinels for spinal cord and brain injuries; adds language 
requiring hospitals to report admitted cases of spinal cord and brain injuries 
to the State Trauma Registry; adds language regarding the department to provide 
summary data to local and regional health departments; and adds language 
allowing the department to contact hospitals and rehabilitation facilities 
regarding suspected cases of reportable injuries. The amendment to sec.103.7 
strengthens the confidential nature of case reporting to include all information 
and records related to injuries. The amendment to sec.103.8 adds language that 
provides for joint investigations of spinal cord injuries and/or brain injuries 
with the Texas Rehabilitation Commission and Texas Traumatic Brain Injury 
Advisory Board. 
David Zane, M.S., Director, Injury Prevention and Control Program, has 
determined that for the first five year period that the sections are in effect 
that there will be no fiscal implications to state or local government as a 
result of enforcing and administering the sections as proposed. 
David Zane has also determined that for each year of the first five years the 
sections are in effect, the public benefit anticipated as a result of enforcing 
the sections as proposed will be improved knowledge of the prevalence of 
injuries and an expanded ability to identify common causes of injuries in Texas. 
There is no anticipated effect on small businesses. The economic costs to 
persons who are required to comply with the sections as proposed will be the 
staff time to complete reporting requirements which is approximately 15 minutes 
per case (estimated $2.75 per case). There will be no impact on local 
employment. 
Comments on the proposal may be submitted to David Zane, M.S., Director, Injury 
Prevention and Control Program, Bureau of Epidemiology, Texas Department of 
Health, 1100 West 49th Street, Austin, Texas 78756-3180, (512) 458-7269. 
Comments will be accepted for 30 days following the date of publication of the 
proposed rules in the Texas Register.
The amendments are proposed under the Health and Safety Code, sec.92.002, which 
requires the Texas Board of Health (board) to adopt rules necessary to implement 
the reporting of injuries; and sec.12.001 which allows the board to adopt rules 
for the performance of every duty imposed by law on the board, the department, 
and the commissioner of health. 
The amendments will affect the Health and Safety Code, Chapter 92. 

sec.103.1. Purpose. 
These sections implement the Texas Injury Prevention and Control Act, <nl> 
Health and Safety Code, Chapter 92,<ol> [House Bill 343, 73rd Legislature, 
1993,] which authorizes the Texas Board of Health to adopt rules concerning the 
reporting and control of injuries. <nl>These sections also implement Chapter 
893, 75th Legislature, 1997, which amends the Texas Injury Prevention and 
Control Act to include traumatic brain injuries as reportable injuries. <ol> 
Nothing in the rules shall be construed to preempt or impede the authority of a 
health authority, a local health department, a public health district, a 
municipality, or a county to conduct the same activities within its 
jurisdiction.

sec.103.2. Definitions. 
The following words and terms, when used in these sections, shall have the 
following meanings, unless the context clearly indicates otherwise. 
<nl>(1)<ol> Board--The Texas Board of Health. 
<nl>(2)<ol> Case--A person in whom an injury is diagnosed by a physician, 
medical examiner, or justice of the peace, based upon clinical evaluation, 
interpretation of laboratory and/or roentgenographic findings, and an 
appropriate exposure history. 
<nl>(3)<ol> Commissioner--The commissioner of the Texas Department of Health. 
<nl>(4)<ol> Department--The Texas Department of Health, 1100 West 49th Street, 
Austin, Texas 78756-3180. 
<nl>(5)<ol> Director--The director of the Texas Department of Health, who is the 
commissioner. 
<nl>(6)<ol> Health authority--A physician designated to administer state and 
local laws relating to public health under the Local Public Health 
Reorganization Act, Health and Safety Code, Chapter 121. The health authority, 
for purposes of these sections, may be the chief administrative officer of a 
public health district or a local health department, or the physician who is to 
administer state and local laws relating to public health. 
<nl>(7)<ol> Health care entity - A health care entity that is capable of 
treating an injured person. Health care entities include, but are not limited 
to, emergency medical service providers, hospitals, and rehabilitation 
facilities. 
<nl>(8)<ol> Injury--Damage to the body that results from intentional or 
unintentional acute exposure to thermal, mechanical, electrical, or chemical 
energy, or from the absence of essentials such as heat or oxygen.
<nl>(9)<ol> Reportable injury--Any injury or condition required to be reported 
under this chapter. 
<nl>(10)<ol> Report of an injury--The notification to the appropriate health 
authority of the occurrence of a specific injury in a human, including all 
information required by the rules and forms promulgated by the Board of Health. 
<nl>(11)<ol> Spinal cord--That portion of the central nervous system which 
extends from the foramen magnum to the cauda equina. All nerve roots within the 
spinal canal are included. 
<nl>(12)<ol> Spinal cord injury - An acute, traumatic lesion of the neural 
elements in the spinal canal, resulting in any degree of sensory deficit, motor 
deficits, or bladder/bowel dysfunction. The neurologic deficit or dysfunction 
can be temporary or permanent. <nl>The following International Classification of 
Diseases 9th Revision Clinical Modification (ICD-9-CM) diagnostic codes are to 
be used to identify cases of spinal cord injury: 806.0-806.9 and 952.0-
953.9.<ol> 
<nl>(13)<ol> State Trauma Registry - A statewide database which documents and 
integrates medical and system information related to the provision of trauma 
care by health care entities. 
<nl>(14)<ol> Submersion injury--A drowning (a death resulting from suffocation 
within 24 hours of submersion in water) or near-drowning (survival for at least 
24 hours after suffocation from submersion in water).
<nl>(15)<ol> Suspected case--A case in which an injury is suspected, but the 
final diagnosis is not yet made. 
<nl>(16)<ol> Traumatic brain injury - An acquired injury to the brain, including 
brain injuries caused by anoxia due to near drowning. The term does not include 
brain dysfunction caused by congenital or degenerative disorders or birth 
trauma. The following International Classification of Diseases 9th Revision 
Clinical Modification (ICD-9-CM) diagnostic codes are to be used to identify 
cases of traumatic brain injury: 800.0-801.9, 803.0-804.9 and 850.0-854.1. The 
ICD-9-CM diagnostic code to be used to identify traumatic brain injury caused by 
anoxia due to near drowning is 348.1. 

sec.103.3. List of Reportable Injuries or Conditions.
Spinal cord injuries, <nl>traumatic brain injuries<ol> and submersion injuries 
are reportable injuries. Reports of these injuries shall include, but not be 
limited to: patient's name, address, age, gender, race/ethnicity, name of health 
care facility, and name of attending physician, <nl>and may include patient's 
occupation and employer.<ol> 

sec.103.4. Reporting Requirements. 
(a) The following persons or their designees shall report in writing within 
<nl>ten<ol> [10] working days all newly diagnosed cases or suspected cases of 
<nl>submersion injuries<ol> [reportable injuries] to the local health authority, 
or where there is no local health authority, the regional health authority: 
(1) a physician who diagnoses or treats a reportable injury or a suspected case 
of a reportable injury; [and] 
(2)-(3) (No change.) 
(b) The reporting physician, medical examiner, or justice of the peace shall 
make the <nl>submersion<ol> report in writing on a form or forms prescribed by 
the Texas Department of Health (department). 
(c) A local health authority or regional health authority shall transmit any 
reports of <nl>submersion<ol> [reportable] injuries to the Bureau of 
Epidemiology, Texas Department of Health, 1100 West 49th Street, Austin, Texas 
78756-3180, on a weekly basis. 
(d) Transmission of <nl>submersion<ol> [injury] reports shall be made by mail, 
courier, or electronic transfer. 
(1)-(2) (No change.) 
<nl>(e)<ol> The following entities or their designees shall report all newly 
diagnosed cases or suspected cases of spinal cord injuries and traumatic brain 
injuries to the department: 
<nl>(1)<ol> a physician who diagnoses or treats a spinal cord injury or a 
traumatic brain injury or a suspected case of a spinal cord injury or a 
traumatic brain injury; 
<nl>(2)<ol> a medical examiner; 
<nl>(3)<ol> justice of the peace; 
<nl>(4)<ol> a hospital that admits a patient with a spinal cord injury or a 
traumatic brain injury or a suspected case of a spinal cord injury or a 
traumatic brain injury; or 
<nl>(5)<ol> a rehabilitation facility that admits or treats a patient with a 
spinal cord injury or a traumatic brain injury or a suspected case of a spinal 
cord injury or a traumatic brain injury. 
<nl>(f)<ol> The reporting physician, medical examiner, justice of the peace, or 
rehabilitation facility shall make the spinal cord injury report or the 
traumatic brain injury report (excluding reports of traumatic brain injuries 
caused by anoxia due to near drowning) in writing on a form or forms prescribed 
by the department within ten working days. A physician shall be exempt from 
reporting if a hospital admitted the patient and fulfilled the reporting 
requirements as stated in subsection (g) of this section. 
<nl>(g)<ol> The reporting hospital shall report the spinal cord injury or the 
traumatic brain injury (excluding traumatic brain injuries caused by anoxia due 
to near drowning) through electronic transmission via modem to the department's 
State Trauma Registry on at least a quarterly basis as described in Chapter 773 
of the Health and Safety Code. 
<nl>(h)<ol> All entities listed in subsection (e)(1)-(5) of this section shall 
report a traumatic brain injury caused by anoxia due to near drowning as a 
submersion injury in the manner described in subsections (a)-(d) of this 
section. 
<nl>(i)<ol> The department shall provide annual summary data to the local and 
regional health authorities. 
<nl>(j)<ol> [(e)] The department may contact a medical examiner, justice of the 
peace, [or] physician, <nl> hospital, or rehabilitation facility<ol> attending a 
person with a case or suspected case of a reportable injury. 

sec.103.7. Confidential Nature of Case Reporting.
(a) All <nl>information and records relating to injuries <ol> [individual injury 
case reports] received by the local health authority or the Texas Department of 
Health (department), including <nl> information electronically submitted to the 
State Trauma Registry and<ol> information from injury investigations, are 
confidential records and not public records. These records shall be held in a 
secure place and accessed only by authorized [health care] personnel. 
(b) Information or records relating to any personal injury may not be released 
or made public on subpoena or otherwise, except that release may be made: 
(1) for statistical purposes, but only if a person <nl>and/or health care 
entity<ol> is not identified; 
(2) with the consent of each person <nl>and health care entity<ol> identified in 
the information released; or 
(3) (No change.) 
(c) (No change.) 

sec.103.8. Investigations.
(a)-(d) (No change.) 
<nl>(e)<ol> When the department investigates spinal cord injuries and traumatic 
brain injuries, the Texas Rehabilitation Commission shall be informed at the 
earliest opportunity. 
<nl>(f)<ol> When the department investigates traumatic brain injuries, the Texas 
Traumatic Brain Injury Advisory Board shall be informed at the earliest 
opportunity. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805464
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 458-7236

CHAPTER 169. Zoonosis Control
SUBCHAPTER C. Training of Animal Shelter Personnel
25 TAC sec.sec.169.61-169.65
The Texas Department of Health (department) proposes amendments to 
sec.sec.169.61-169.65, concerning the training of animal shelter personnel. 
Specifically, the sections cover the purpose of the sections, definitions, types 
of courses, prerequisites for course attendance, and course content. The 
amendments define the terms "satisfactory completion," and "animal control 
officer (ACO) course," delete definitions either for clarification or because 
they were already provided in the associated statute, describe the basic, 
advanced, and administrative ACO courses, modify the prerequisites for course 
attendance, and list the content of courses. 
James H. Wright, D.V.M., M.P.V.M., Director, Zoonosis Control Division, has 
determined that for each year of the first five-year period the sections are in 
effect, there will be an estimated cost to state government of approximately 
$400 per year as a result of copying and mailing materials for additional 
administrative courses. The impact on local government would be an anticipated 
savings of $2,000 per year as a result of being able to send animal 
shelter/control personnel to a department administrative course, developed 
specifically for those occupations, instead of a generalized administrative 
training course provided by a commercial company. 
James H. Wright also has determined that for each year of the first five years 
that the sections will be in effect, the public health benefit as a result of 
enforcing or administrating the sections would be decreases in human exposures 
to rabies, animal rabies cases, animal bites, pet overpopulation, and free-
roaming animals, plus an increase in the humane treatment of animals, by 
increasing the accessibility of advanced and administrative training courses for 
animal shelter/control personnel through less restrictive course prerequisites. 
There will be no costs to small businesses or persons required to comply with 
these sections as proposed and no effect on local employment. 
Written comments may be submitted to James H. Wright, D.V.M., M.P.V.M., 
Director, Zoonosis Control Division, 1100 West 49th Street, Austin, Texas 78756. 
Comment on the proposed rule will be accepted for 30 days following publication 
in the Texas Register. 
The amendments are proposed under the Texas Health and Safety Code, Chapter 823, 
"Animal Shelters," sec.823.004, which provides the Texas Board of Health (board) 
with the authority to prescribe standards for training animal shelter personnel 
in animal health and disease control, humane care and treatment of animals, 
control of animals in an animal shelter, and transportation of animals; 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. 
The amendments affect Texas Health and Safety Code, sec.823.004. 

sec.169.61. Purpose. 
The purpose of these sections is to set standards and charge fees for the 
training of animal shelter <nl>and animal control<ol> personnel as to animal 
health and disease control, humane care and treatment, transportation of 
animals, and the control of animals in an animal shelter. 

sec.169.62. Definitions. 
The following words and terms, when used in this <nl>subchapter<ol> 
[undesignated head], shall have the following meanings, unless the context 
clearly indicates otherwise. 
[Animal control officer (ACO) - Any person enforcing local ordinances and/or 
Texas Department of Health rules.] 
[Animal shelter - An entity that legally collects, transports, keeps, or 
impounds stray, homeless, abandoned, or unwanted animals.] 
[Animal shelter personnel - Any person, excluding veterinarians, working in an 
animal shelter.] 
<nl>(1)<ol> <nl>Animal Control Officer (ACO) course <ol> [Course] - An 
appropriate training session administered by the Texas Department of Health 
<nl>(department). There are three types of training:<ol> [for] basic [animal 
control officers], advanced [animal control officers], <nl>and<ol> [or] 
administrative [animal control officers]. 
<nl>(2)<ol> Department - The Texas Department of Health [(TDH)] 
<nl>(3)<ol> Satisfactory completion - In order to satisfactorily complete an ACO 
course, an individual must attend all sessions and attain a passing score as set 
by the department on all post-course tests and/or practical exercises. 

sec.169.63. <nl>Courses<ol> [Levels of Proficiency
(a) The basic <nl>ACO course<ol> [level] <nl> gives introductory instruction in 
the topics listed in sec.169.65(a) of this title (relating to course 
content)<ol> [encompasses the minimum proficiency required to do an acceptable 
job as an ACO]. 
(b) The advanced <nl>ACO course<ol> [level] <nl> covers the same topics as the 
basic course, but at a higher level and with emphasis on verbal communication 
skills<ol> [encompasses the proficiency necessary for the optimum performance of 
duties as an ACO]. 
(c) The administrative <nl>ACO course<ol> [level] includes <nl>instruction 
in<ol> [the] supervisory and management skills necessary to <nl>implement and 
direct application of the concepts taught in the basic and advanced courses 
<ol>[direct an animal shelter operation]. 

sec.169.64. Prerequisites for Course Attendance.
(a) Basic, advanced, or administrative. A person must[:] <nl>have applied<ol> 
[apply] for attendance with the department's Regional Zoonosis Control Program 
conducting the <nl>ACO<ol> course. Course enrollment will be based on space 
availability policies <nl> set by the region hosting the course<ol>. 
(b) Advanced. A person must <nl>have<ol>: 
(1) [have] satisfactorily completed a basic <nl> ACO<ol> course and, 
subsequently, <nl>worked or volunteered<ol> [have been employed] in animal 
shelter/<nl>animal control activities <ol> [work] at least <nl>2,000 hours<ol> 
[one year]; and 
(2) <nl>provided a recommendation from the individual's supervisor to include a 
statement that the person meets prerequisites for course attendance<ol> [provide 
proof of high school graduation or equivalency
(c) Administrative. A person must <nl>provide a recommendation from the 
individual's supervisor to include a statement that the person meets one of the 
following prerequisites for course attendance<ol>: 
(1) [have] satisfactorily completed an advanced <nl> ACO<ol> course; [and] 
<nl>(2)<ol> worked in an administrative position for two years; or 
<nl>(3)<ol> [(2)] [have] completed <nl>60<ol> [30] hours of college credit 
[(each year of full-time employment as a supervisor or administrator in animal 
control may be substituted for five hours of college credit)]. 

sec.169.65. Course Content. 
<nl>(a)<ol> The basic and advanced courses will include <nl> technical<ol> 
coverage of topics deemed pertinent to animal shelter/<nl> animal control<ol> 
personnel by the department's Zoonosis Control Division (ZCD) including, but not 
limited to, <nl>animal health and disease control, humane care and treatment of 
animals, control of animals in an animal shelter, and the transportation of 
animals<ol> [animal capture, restraint, impoundment and disposition; animal 
health, including zoonotic diseases; animal identification; sanitation and 
disease control; record keeping; shelter safety and occupational hazards; public 
relations; and animal laws and regulations relating to these topics]. The 
administrative course will include <nl>instruction in <ol> [coverage of] 
supervisory and management skills <nl>necessary to implement and support the 
concepts taught in the basic and advanced courses<ol>. 
<nl>(b)<ol> There is no cost for attending a course. However, the Animal Control 
Officer Training Manual, which can be purchased from the department, is an 
essential reference. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 17, 1998.
TRD-9805447
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 458-7236

CHAPTER 181. Vital Statistics
SUBCHAPTER A. Miscellaneous Provisions
25 TAC sec.181.8, sec.181.9
The Texas Department of Health (department) proposes amendments to sec.181.8 and 
sec.181.9, concerning supplemental birth certificates and access to files. These 
sections revise and eliminate the word legitimation since the statutes no longer 
use this word and updates rule language concerning creation of a supplemental 
certificate of birth based on paternity determination. In addition, the rule 
directs the Bureau of Vital Statistics to notify the Office of the Attorney 
General, the Title IV-D agency for the State of Texas, of any supplemental birth 
records based on paternity. 
Richard B. Bays, Chief, Bureau of Vital Statistics has determined that for the 
first five-year period the sections are in effect, there will be no fiscal 
implications to state government as a result of administering or enforcing the 
sections as proposed. There will be no fiscal implications for local government. 
Mr. Bays has also determined that for each year of the first five years the 
sections are in effect, the public benefit will be the updating and improvement 
of rule language. There will be no effect on small business. There are no 
anticipated economic costs to persons who are required to comply with the 
sections as proposed. There is no anticipated impact on local employment.
Comments on the proposal may be submitted to Richard B. Bays, State Registrar, 
Bureau of Vital Statistics, Texas Department of Health, 1100 West 49th Street, 
Austin, Texas 78756-3191, (512) 458-7692. Comments will be accepted for 30 days 
following publication of this proposal in the Texas Register. 
The amendments are proposed under the Health and Safety Code, sec.191.003, which 
provides the Board of Health (board) with the authority to adopt necessary rules 
for collecting, recording, transcribing, compiling, and preserving vital 
statistics; sec.192.006 which provides that supplemental birth certificates 
shall be prepared and filed in accordance with board rules; 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. 
The amendments affect the Health and Safety Code, Chapter 192. 

sec.181.8. <nl>Supplemental Birth Certificates<ol> [Adoptions, Legitimations, 
and Paternity Determinations].
(a) When <nl>a supplemental<ol> [an amended] certificate of birth is prepared 
and filed based on adoption [,legitimation,] or paternity determination, a copy 
of the new certificate shall be forwarded to each local registration official in 
whose office is recorded the <nl>original<ol> [natural] birth record of such 
child.
(b) Wherever possible, the local registration official shall [,unless otherwise 
requested by the adoption parents,] remove from his <nl>or her<ol> files the 
<nl>original<ol> [natural] birth record and forward it to the State Bureau of 
Vital Statistics. Where it is not possible to remove the <nl>original<ol> 
[natural] birth record, the local registration official shall cancel such record 
in such manner as to preclude the disclosure of any information contained 
therein. In its place he <nl>or she<ol> shall substitute the 
<nl>supplemental<ol> [amended] certificate of birth. 
(c) (No change.) 
(d) Where application is made for the filing of <nl>a supplemental <ol> [an 
amended] certificate based on <nl>paternity<ol> [a marriage of the parents 
subsequent to the birth], the applicant shall submit to the State Bureau of 
Vital Statistics a certified copy of the certificate of marriage <nl>indicating 
the subsequent marriage of the parents<ol>, an acknowledgment of 
<nl>paternity<ol> [parentage] prepared on a form prescribed by the <nl>Texas<ol> 
[State] Department of Health<nl>,or a certified copy of the court decree if the 
information concerning the court decree is not already in the bureau files<ol>. 

sec.181.9. Access to [Sealed Legitimation and] Paternity [Determination] Files. 
<nl>(a)<ol> After the <nl>supplemental<ol> [supplementary] certificate of birth 
based on [legitimation or] paternity [determination] is filed, any information 
disclosed from the record shall be made from the <nl>supplemental<ol> 
[supplementary] certificate, and access to the original certificate of birth and 
to the documents filed upon which the <nl>supplemental<ol> [supplementary] 
certificate is based shall not be authorized except upon order of a court of 
competent jurisdiction. 
<nl>(b)<ol> The Bureau of Vital Statistics shall notify the Office of the 
Attorney General, the Title IV-D agency for the State of Texas, in a manner 
agreed by both agencies of any supplemental birth records based upon paternity.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 17, 1998.
TRD-9805439
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 458-7236

SUBCHAPTER B. Vital Records
25 TAC sec.181.30
The Texas Department of Health (department) proposes new sec.181.30, concerning 
instructions and requirements for filing amendments to medical certification of 
certificate of death with a local registrar before submission to the department. 
Richard B. Bays, Chief, Bureau of Vital Statistics has determined that for the 
first five-year period the section is in effect, there will be no fiscal 
implications to state or local government as a result of administering or 
enforcing the section as proposed. 
Mr. Bays has also determined that for each year of the first five years the 
section is in effect, the benefits to the public, state, and local government 
will be beneficial and will aid the department in getting the medical amendment 
filed timely. There will be no effect on small business. There are no 
anticipated economic costs to persons who are required to comply with the 
section as proposed. There is no anticipated impact on local employment. The 
decedent's family members and funeral homes will be able to purchase amended 
certified copies of death certificates used in the application for insurance 
benefits, settlement of pension claims, and transfer of title of real and 
personal property.
Comments on the proposed rule may be submitted to Richard B. Bays, State 
Registrar, Bureau of Vital Statistics, Texas Department of Health, 1100 West 
49th Street, Austin, Texas 78756-3191, (512) 458-7692. Public comments will be 
accepted for 30 days after publication in the Texas Register. 
The new section is proposed under authority of the Health and Safety Code, 
sec.191.003, which provides the Board of Health (board) with authority to adopt 
necessary rules for collecting, recording, transcribing, compiling, and 
preserving vital statistics, and sec.191.028 which provides for filing 
amendments to certificates; 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. The new section affects 
Health and Safety Code, Chapter 193. 

sec.181.30. Instructions and Requirements for Filing of Amendments to Medical 
Certification of Certificate of Death with a Local Registrar. 
(a) An amending certificate (medical amendment) may be filed with the 
appropriate local registrar to complete or correct medical certification 
information on a certificate of death that is incomplete or inaccurate. The 
medical amendment must be on a form prescribed by the department. 
(b) A certificate described in subsection (a) of this section shall only be 
filed upon completion by the individual responsible for the certification of the 
original death certificate. If the original was signed by a physician, and a 
justice of the peace (JP) or medical examiner's office (ME) has subsequently 
conducted an inquest as authorized by the Code of Criminal Procedure, Chapter 
49, the medical amendment may be filed by the JP or ME that conducted the 
inquest. 
(c) The local registrar shall carefully examine each medical amendment when 
presented for registration to determine if it is complete as required by the 
state registrar's instructions. 
(d) If the medical amendment is incomplete or unsatisfactory, the local 
registrar shall call attention to the defects in the return. 
(e) The local registrar shall number the medical amendment with the same file 
number assigned to the original death certificate. The local registrar shall 
sign each medical amendment to attest to the date the amendment is filed in the 
local registrar's office. The signature may be either handwritten or a facsimile 
stamp, and must be written or stamped with permanent black or blue ink. The 
medical amendment shall be attached to and become a part of the legal record of 
the death if the amendment is accepted for filing.
(f) The local registrar shall make a photographic duplication of the medical 
amendment as authorized by the Local Government Code, Chapters 201 or 204. The 
copy shall be permanently preserved in the local registrar's office as the local 
record, in the manner directed by the state registrar.
(g) The local registrar shall forward the original, properly filed medical 
amendment to the state registrar within ten days of filing.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 17, 1998.
TRD-9805440
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 458-7236

CHAPTER 289. Radiation Control
SUBCHAPTER E. Registration Regulations
25 TAC sec.289.230
The Texas Department of Health (department) proposes an amendment to 
sec.289.230, concerning certification of mammography systems. The amendment to 
sec.289.230 incorporates changes to requirements on state certification, 
inspections, and violations as the result of House Bill 1534, 75th Texas 
Legislature, and requirements for the department to become an accreditation body 
in accordance with the federal Mammography Quality Standards Act. The revision 
includes new definitions supporting accreditation and accreditation fees. The 
amendment will give registrants an option of obtaining accreditation through the 
state instead of the American College of Radiology. Requirements for 
technologists and continuing education requirements for medical physicists 
performing surveys on mammography equipment to comply with federal standards 
have been added. Other minor grammatical changes were made to the section. 
Mrs. Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and 
Standards, Bureau of Radiation Control, has determined that for each year of the 
first five-year period the section will be in effect, there will be fiscal 
implications for state or local government who choose accreditation through the 
state as a result of enforcing or administering the section as proposed. 
The department will receive an additional $21,600 in revenue for the first year, 
$108,000 in revenue the second year, and $252,000 for each remaining year of the 
first five-year period. Proposed fees for accreditation of a facility's first 
mammography unit are $720 and $345 for each additional unit. Fees for 
accreditation by the American College of Radiology are $900 for the first unit 
and $700 for each additional unit. The fiscal impact to state or local 
government entities that choose accreditation through the state will be a 
decrease in accreditation fees ranging from $180 to $4085 depending on the 
number of mammography machines possessed. 
Mrs. McBurney also has determined that for each year of the first five years the 
proposed section will be in effect, the public benefit anticipated as a result 
of enforcing the section will be to ensure continued protection of the public 
and workers from unnecessary exposure to radiation by recovering the majority of 
the costs of the regulatory program from those entities possessing sources of 
radiation and by requiring appropriate training for individuals operating and 
evaluating mammography equipment. The amendment also provides mammography 
facilities an option for accreditation at a lower cost. The specific effect on 
small businesses and persons who are required to comply with the section as 
proposed will vary depending on the number of mammography machines authorized on 
a certificate of registration. There is no anticipated impact on local 
employment. 
Comments on the proposal may be presented to Ruth E. McBurney, C.H.P., Director, 
Division of Licensing, Registration and Standards, Bureau of Radiation Control, 
Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189, 
Telephone (512) 834-6688 or electronic mail at Ruth.Mcburney@tdh.state.tx.us. 
Public comments will be accepted for 30 days following publication of this 
proposal in the Texas Register. In addition, a public hearing to accept oral 
comments will be held at 9:00 a.m., Tuesday, May 26, 1998, in Conference Room 
N218, Texas Department of Health, Bureau of Radiation Control, located at the 
Exchange Building, 8407 Wall Street, Austin, Texas. 
The amendment is proposed under the Health and Safety Code, Chapter 401, which 
provides the Texas Board of Health (board) with authority to adopt rules and 
guidelines relating to the control of radiation; and sec.12.001, which 
authorizes the board to adopt rules for the performance of every duty imposed by 
law on the board, the department and the commissioner of health. The amendment 
affects Health and Safety Code, Chapter 401. 

sec.289.230. Certification of Mammography Systems.
(a) <nl>Purpose and scope<ol> [Scope and purpose].
(1) This section provides for the certification of mammography systems <nl>and 
the accreditation of mammography facilities<ol>. No person shall use x-ray 
producing machines for mammography of humans except as authorized in a 
<nl>state<ol> certification of mammography systems issued by the agency in 
accordance with the requirements of this section <nl>and in a certificate issued 
by the United States Food and Drug Administration (FDA)<ol>. 
(2) (No change.) 
(3) In addition to the requirements of this section, all registrants are subject 
to the requirements of sec.289.112 of this title (relating to Hearing and 
Enforcement Procedures), [sec.289.113 of this title (relating to Standards for 
Protection Against Radiation), sec.289.114 of this title (relating to Notices, 
Instructions, and Reports to Workers; Inspections),] <nl>sec.289.201 of this 
title (relating to General Provisions), sec.289.202 of this title (relating to 
Standards for Protection Against Radiation)<ol> [sec.289.122 of this title 
(relating to Registration of Radiation Machine Use and Services)], 
<nl>sec.289.203 of this title (relating to Notices, Instructions, and Reports to 
Workers; Inspections), sec.289.204<ol> [sec.289.126] of this title (relating to 
Fees for Certificates of Registration, Radioactive Material(s) Licenses, 
Emergency Planning and Implementation, and Other Regulatory Services), and 
<nl>sec.289.226 of this title (relating to Registration of Radiation Machine Use 
and Services), <ol> [sec.289.201 of this title (relating to General Provisions)
(b) Definitions. The following words and terms, when used in this section, shall 
have the following meaning[,] unless the <nl> context<ol> [text] clearly 
indicates otherwise. 
<nl>(1)<ol> Accreditation - An official approval of a mammography facility by an 
accrediting body. 
<nl>(2)<ol> [(1)] <nl>Accreditation<ol> [Accrediting] body - An entity that has 
been approved by the <nl> FDA<ol> [United States Food and Drug Administration 
(FDA)] under 42 United States Code sec.263b(e)(1)(A) to accredit mammography 
facilities.
<nl>(3)<ol> Agency - The Texas Department of Health. 
<nl>(4)<ol> [(2)] Automatic exposure control (AEC) - A device <nl>that<ol> 
[which] automatically controls one or more technique factors in order to obtain 
at preselected locations a required quantity of radiation<nl>.<ol> [(See 
definition for phototimer).
<nl>(5)<ol> [(3)] Average glandular dose - The value in millirad <nl>(mrad)<ol> 
or milligray <nl>(mGy)<ol> for a given breast or phantom thickness <nl>that<ol> 
[which] estimates the average absorbed dose to the glandular tissue extrapolated 
from free air exposures and based on fixed filter thickness and target material. 
<nl>(6)<ol> [(4)] Beam-limiting device - A device <nl>that<ol> [which] provides 
a means to restrict the dimensions of the x-ray field. 
<nl>(7)<ol> [(5)] Calibration <nl>of instruments <ol> - The <nl>comparative<ol> 
response or reading of an instrument relative to a series of known radiation 
values over the range of the instrument. [; or the strength of a source of 
radiation relative to a standard.]
<nl>(8)<ol> Calibration of machines - The measurement and specification of 
absorbed dose to a medium, or exposure in air, at a defined point in a radiation 
beam. 
<nl>(9)<ol> Certificate of Registration - A form of permission given by the 
agency to an applicant who has met the requirements for registration or 
mammography system certification set out in the Texas Radiation Control Act 
(Act) and this chapter. 
<nl>(10)<ol> Certification of mammography systems (state certification) - A form 
of permission given by the agency to an applicant who has met the requirements 
for mammography system certification set out in the Act and this chapter. 
<nl>(11)<ol> [(6)] Contact hour - 50 minutes of attendance and/or participation 
in instructor-directed activities. 
<nl>(12)<ol> [(7)] Continuing education - Acquiring contact hours by attendance 
and/or participation in lectures, conferences, or seminars; or participation in 
self-study programs. 
<nl>(13)<ol> [(8)] Control panel - That part of the radiation machine control 
upon which are mounted the switches, knobs, push buttons, and other hardware 
necessary for manually setting the technique factors. 
<nl>(14)<ol> [(9)] Dedicated mammographic equipment - Equipment that has been 
specifically designed and manufactured for mammography. 
<nl>(15)<ol> [(10)] Equipment (See definition for x-ray equipment). 
<nl>(16)<ol> [(11)] Facility - A hospital, outpatient department, clinic, 
radiology practice, mobile unit, an office of a physician, or other person that 
conducts breast cancer screening or diagnosis through mammography activities, 
including any or all of the following: 
(A) the operation of equipment to produce a mammogram; 
(B) processing of film; 
(C) initial interpretation of the mammogram; <nl>or<ol> [and] 
(D) maintaining the viewing conditions for that interpretation.
<nl>(17)<ol> [(12)] Formal training - Attendance and participation in 
instructor-directed activities. This does not include self-study programs. 
<nl>(18)<ol> [(13)] Half-value layer (HVL) - The thickness of a specified 
material that attenuates the beam of radiation to an extent such that the 
exposure rate is reduced to one-half of its original value. In this definition, 
the contribution of all scattered radiation, other than any which might be 
present initially in the beam concerned, is deemed to be excluded. 
<nl>(19)<ol> [(14)] Interpreting physician - A physician who interprets 
mammographic images <nl>and who meets the requirements of subsection (d)(2)(A) 
of this section<ol>. 
<nl>(20)<ol> [(15)] Image receptor - Any device, such as a fluorescent screen or 
radiographic film, that transforms incident x-ray photons either into a visible 
image or into another form that can be made into a visible image by further 
transformations. 
<nl>(21)<ol> [(16)] kV - Kilovolt. 
<nl>(22)<ol> [(17)] kVp - Kilovolt peak.
<nl>(23)<ol> [(18)] mA - Milliampere. 
<nl>(24)<ol> [(19)] Mammogram - A radiographic image produced through 
mammography. 
<nl>(25)<ol> [(20)] Mammographic phantom - A test object used to simulate 
radiographic characteristics of compressed breast tissue and containing 
components that radiographically model aspects of breast disease and cancer. The 
phantom shall be approved or accepted by the FDA. 
<nl>(26)<ol> [(21)] Mammography - The use of x-radiation to produce an image of 
the breast on film, paper, or digital display that may be used to detect the 
presence of pathological conditions of the breast. 
<nl>(27)<ol> [(22)] Mammography system - <nl>A system that<ol> includes the 
following: 
(A) an x-ray unit used as a source of radiation in producing images of breast 
tissue; 
(B) an imaging system used for the formation of a latent image of breast tissue; 
(C) an imaging processing device for changing a latent image of breast tissue to 
a visual image that can be used for diagnostic purposes;
(D) a viewing device used for the visual evaluation of an image of breast tissue 
if the image is produced in interpreting visual data captured on an image 
receptor; 
(E) a medical radiological technologist who performs a mammography; and 
(F) a physician who engages in, and who meets the requirements adopted by 
<nl>this section<ol> [board rule] relating to the reading, evaluation, and 
interpretation of <nl>mammograms<ol> [mammogram
<nl>(28)<ol> [(23)] mAs - Milliampere-second.
<nl>(29)<ol> [(24)] Medical physicist - A person meeting the qualifications for 
a medical physicist specified in subsection (d)(2)(C) of this section. 
<nl>(30)<ol> [(25)] Medical radiological technologist - An individual 
specifically trained in the use of radiographic equipment and the positioning of 
patients for radiographic examinations and who meets the requirements in 
subsection (d)(2)(B) of this section. 
<nl>(31)<ol> [(26)] Mobile services - <nl> The utilization of<ol> [Utilizing] 
radiation machines in temporary locations for limited time periods. The 
radiation machines may be fixed inside a mobile van or transported to temporary 
locations. 
<nl>(32)<ol> [(27)] Mobile x-ray equipment (See definition for x-ray equipment).
<nl>(33)<ol> [(28)] Optical density (OD) - A measure of the percentage of 
incident light transmitted through a developed film <nl>and<ol> [; it is] 
defined by the equation<nl>.<ol>
<nl>Figure: 25 TAC sec.289.230(b)(33)<ol> 
[Figure: 25 TAC sec.289.230(b)(28)] 
<nl>(34)<ol> [(29)] Patient - Any individual who undergoes clinical evaluation 
in a mammography facility, regardless of whether the person is referred by a 
physician or is self-referred. 
<nl>(35)<ol> [(30)] Phantom image - A radiographic image of a phantom. 
<nl>(36)<ol> Physician - An individual licensed by the Texas State Board of 
Medical Examiners with license in good standing. 
<nl>(37)<ol> [(31)] Self-referral mammography - The use of x-radiation to test 
asymptomatic women for the detection of diseases of the breasts when such tests 
are not specifically and individually ordered by a licensed physician. 
<nl>(38)<ol> Severity Level I Violation - Examples of a severity level I 
violation include but are not limited to the following: 
<nl>(A)<ol> unqualified interpreting physician; 
<nl>(B)<ol> unqualified mammography operator; 
<nl>(C)<ol> unqualified medical physicist; 
<nl>(D)<ol> failing phantom images for over three months;
<nl>(E)<ol> failure to perform processor quality control for over two months; 
<nl>(F)<ol> failure to have a quality control program in place and being 
performed; and 
<nl>(G)<ol> operating with a denied accreditation certificate.
[(32) SID (See definition for source-to-image receptor distance).] 
<nl>(39)<ol> [(33)] Source-to-image receptor distance <nl>(SID)<ol> - The 
distance from the source to the center of the input surface of the image 
receptor. 
<nl>(40)<ol> [(34)] Survey - An on-site physics consultation and evaluation of a 
mammography system performed by a medical physicist. 
<nl>(41)<ol> [(35)] Technical aspects of mammography - In relation to continuing 
education, some or all of the following subjects must be included: 
(A) anatomy and physiology of the female breast; 
(B) mammographic positioning; 
(C) technical factors used in mammography; 
(D) mammographic film evaluation and critique; 
(E) breast pathology; <nl>or<ol> [and] 
(F) mammographic quality assurance procedures. 
<nl>(42)<ol> Technique chart - A chart that provides all necessary generator 
control settings and geometry needed to make clinical radiographs when the 
radiography system is in manual mode. 
<nl>(43)<ol> [(36)] X-ray equipment - An x-ray system, subsystem, or component 
thereof. Types of x-ray equipment are as follows: 
(A) mobile x-ray equipment - x-ray equipment mounted on a permanent base with 
wheels and/or casters for moving while completely assembled;
(B) stationary x-ray equipment - x-ray equipment <nl>that <ol> [which] is 
installed in a fixed location. 
<nl>(44)<ol> [(37)] X-ray field - That area of the intersection of the useful 
beam and any one of the set of planes parallel to and including the plane of the 
image receptor, whose perimeter is the locus of points at which the exposure 
rate is one-fourth of the maximum in the intersection. 
<nl>(45)<ol> [(38)] X-ray tube - Any electron tube <nl>that<ol> [which] is 
designed to be used primarily for the production of x rays. 
(c) Exemptions. 
(1) Mammography machines or cabinet x-ray units used exclusively for examination 
of breast biopsy specimens are exempt from the requirements of this section. 
These units are required to meet applicable provisions of <nl> sec.289.226 of 
this title and sec.289.227 of this title (relating to Use of Radiation Machines 
in the Healing Arts and Veterinary Medicine)<ol> [Texas Regulations for Control 
of Radiation (TRCR) Part 32 as adopted by reference in sec.289.116 of this title 
(relating to Use of Radiation Machines in the Healing Arts and Veterinary 
Medicine) and TRCR Part 42 as adopted by reference in sec.289.122 of this 
title]. 
(2) Xerography systems not used for detection of diseases of the breast are 
exempt from the requirements of this section. These units are required to meet 
applicable provisions of <nl>sec.289.226 of this title and sec.289.227 of this 
title<ol> [TRCR Part 32 as adopted by reference in sec.289.116 of this title and 
TRCR Part 42 as adopted by reference in sec.289.122 of this title]. 
(3) Mammography systems not meeting the AEC requirements of subsection (e)(1)(G) 
of this section are exempt from this requirement if changes in the facility's 
technique chart reflect the density settings required to maintain the film 
density to within <nl>plus or minus<ol> 0.3 OD when the AEC is utilized. This 
change shall be addressed in the operating and safety procedures. 
(4) Mammography systems used exclusively for invasive interventions for 
localization or biopsy procedures or other unique mammographic imaging 
modalities are exempt from the requirements of this <nl>section<ol> [part] 
except for those listed in subsection (f)(6) of this section.
(d) Operational controls for mammographic equipment. 
(1) Quality assurance. 
(A) Quality assurance program. Each registrant shall have a written, ongoing 
quality assurance program specific to mammographic imaging covering all 
components of the diagnostic x-ray imaging system to ensure consistently high-
quality images while minimizing patient exposure. Responsibilities under this 
requirement include <nl>the following<ol>: 
(i)-(iv) (No change.) 
(B) <nl>Quality control.<ol> The registrant shall ensure that the following 
quality control items are performed at least as often as the frequency specified 
[,] when mammographic equipment is initially installed, replaced, or reassembled 
after moving<nl>.<ol> [, and after tube or tube inserts are installed.] When the 
results of tests performed in accordance with this subparagraph and 
<nl>subparagraph<ol> [paragraph] (C) of this paragraph do not meet the required 
acceptance criteria, corrective action shall begin within 30 days following the 
check and completed no longer than 90 days from commencement, unless authorized 
by the agency. Clinical images of mammographic examinations shall not be 
processed using a processor that deviates from the requirements of clause (i) of 
this subparagraph. A processor, other than the one commonly in use, may be used 
temporarily provided that the backup processor has been tested according to 
clause (i) of this subparagraph and has shown to be in tolerance, and a phantom 
image from the mammography system shall be acquired and run in the backup 
processor and evaluated for acceptable quality according to clause (iv) of this 
subparagraph, prior to the first patient exposure. Records of the quality 
control checks, including any correction or repair, shall be maintained for a 
minimum of two years for inspection by the agency. Films <nl>that<ol> [which] 
result from the performance of quality control tests shall be maintained for a 
minimum of 12 months. 
(i) Processor performance shall be evaluated by sensitometric and densitometric 
means and by developer temperature daily, or on each day of use for mammography, 
and the results recorded before the first patient exposure. The calibration of 
the densitometer must be checked every 12 months. Film processors utilized for 
mammography shall be adjusted to and operated at the specifications recommended 
by the mammographic film manufacturer, or at other settings such that the 
sensitometric performance is at least equivalent. For any registrant performing 
mammography and using film processors at multiple locations, such as a mobile 
service, each processor shall be subject to <nl> the requirements of this 
clause<ol> [this requirement]. Corrective action shall be taken <nl>in the event 
of the following<ol> [when (I) deviations exceeding <nl>plus or minus<ol> 0.15 
in OD from established operating levels occur for readings of mid-density and DD 
on the sensitometric control charts; and/or 
(II) (No change.) 
(ii)-(xvi) (No change.) 
(C) Additional quality control requirements. When deviations are found, 
corrections or repairs shall be made in accordance with <nl>subparagraph (B) of 
this paragraph<ol> [paragraph (1)(B) of this subsection].
(i)-(iii) (No change.) 
(D) Retention of clinical images. A registrant shall maintain and make available 
to a [mammography] patient of the facility <nl> any<ol> original mammograms 
performed at the facility until <nl>the earlier of either:<ol>
(i) the fifth anniversary of the mammography; [or]
(ii) <nl>the tenth anniversary of the mammography,<ol> if an additional 
mammogram of the same [mammography] patient is not performed [within the five 
year period] by the facility [, the tenth anniversary of the mammography]; or 
(iii) at the request of the [mammography] patient, the <nl>date the<ol> 
[mammography] patient's medical records are <nl>forwarded<ol> [permanently 
transferred] to another medical institution, to a physician of the [mammography] 
patient, or to the [mammography] patient. <nl>If the medical records are 
permanently transferred,<ol> this institution or physician will maintain and 
become responsible for the original film until the fifth or tenth anniversary as 
specified in clauses (i) and (ii) of this subparagraph. 
(E) Interpretation of clinical images. Each facility shall prepare a written 
report of the results of any mammography examination. Such report shall be 
completed as soon as reasonably possible and shall <nl>be<ol>: 
(i) [be] signed by the interpreting physician or [be] signed by electronic 
signature by the interpreting physician<nl>;<ol> [and include permission to use 
an electronic signature for the report; and] 
<nl>(ii)<ol> maintained in the mammography patient's medical record in 
accordance with clauses (i) and (iii) of this subparagraph. A facility is not 
required to maintain copies of the lay person summary; and 
<nl>(iii)<ol> provided as follows: 
<nl>(I)<ol> to the mammography patient's physician(s);
<nl>(II)<ol> if the mammography patient's physician is not available, the report 
shall be sent directly to the mammography patient and shall include a summary 
written in language easily understood by a lay person; or 
<nl>(III)<ol> if the patient is self-referred, such report shall comply with the 
provisions of paragraph (4) of this subsection. 
[(ii) be provided to the mammography patient's physician(s); or] 
[(I) if the mammography patient's physician is not available the report shall be 
sent directly to the mammography patient; and] 
[(II) if such report is sent to the mammography patient, it shall include a 
summary written in language easily understood by a lay person; or] 
[(III) if the patient is self-referred, such report shall comply with the 
provisions of paragraph (4) of this subsection; and]
[(iii) be maintained in the mammography patient's medical record in accordance 
with clauses (i) and (ii) of this subparagraph. A facility is not required to 
maintain copies of the lay person summary.]
<nl>(F)<ol> Follow-up on interpretation of clinical images. Each facility shall 
establish procedures for reviewing outcome data from all mammography performed, 
including follow-up on the disposition of positive mammograms and correlation of 
surgical biopsy results with mammogram reports. 
<nl>(G)<ol> [(F)] Processing of mammographic images. Each registrant shall 
utilize the same processor for clinical mammographic and mammographic phantom 
images. Clinical images shall be processed within an interval not to exceed 24 
hours from the time the first clinical image is taken. 
(i) Each clinical image shall be marked by a film flasher device, lead marker, 
or printed label in a non-critical area on the film. The information shall 
include, but is not limited to, facility name, patient's name, and the date of 
the film. 
(ii) Information shall also be maintained for each clinical image by utilizing a 
label on each film, recording on the film jacket, or maintaining a log or other 
means. The information shall include, but is not limited to, compressed breast 
thickness or degree of compression, and kVp.
(iii) Facilities utilizing batch processing shall: 
(I) use a container to transport clinical images that will protect the film from 
exposure to light and radiation; 
(II) maintain a log to include each patient name and unique identification 
number, date and time of the first exam of each batch, and date and time of 
batch development. 
<nl>(H)<ol> [(G)] Xerography. Processing equipment for xerography shall be 
evaluated daily on each day of use before the first mammography patient 
exposure. Processing and maintenance of equipment shall be performed in 
accordance with manufacturer's recommendations. Xerography systems shall comply 
with all the requirements for mammography in this subsection and in subsection 
(e) of this section except for the following: <nl>subparagraphs (B)(i)-(iii), 
(vi), (viii), and (ix); (C)(ii) and (iii); and (G) of this paragraph <ol> 
[subparagraph (B)(i)-(iii), (vi), (viii), and (ix) of this paragraph; 
subparagraph (C)(ii) and (iii) of this paragraph; and subparagraph (F) of this 
paragraph]. 
(2) Personnel qualifications. 
(A) Interpreting physician. Each physician interpreting mammograms shall: 
(i) hold a current Texas license issued by the Texas State Board of Medical 
Examiners[;] and <nl>be certified by the American Board of Radiology, the 
American Osteopathic Board of Radiology, or one of the other bodies approved by 
the FDA to certify interpreting physicians or have equivalent formal training 
and experience;<ol> 
[(I) be certified by the American Board of Radiology, the American Osteopathic 
Board of Radiology, or one of the other bodies approved by the FDA to certify 
interpreting physicians; or]
[(II) have equivalent formal training and experience;] 
(ii) have had 40 hours of documented continuing medical education credits in 
mammography. (Continuing education credits shall be approved by the 
Accreditation Council for Continuing Medical Education [(ACCME)] or the 
Committee on Continuing Medical Education of the American Osteopathic 
Association.) Forty hours specifically devoted to mammography during residency 
will be accepted if documented in writing by the radiologist, and if the 
residency program has been approved by the Accreditation Council for Graduate 
Medical Education [(ACGME)] or the Council on Postdoctoral Training of the 
American Osteopathic Association [(COPT-AOA)]; 
(iii) have [the following] initial experience six months preceding application 
<nl>in reading and interpretation of mammograms from the examinations of<ol>: 
(I) [have read and interpreted the mammograms from the examinations of] at least 
240 mammography patients; or 
(II) [have read and interpreted the mammograms from the examinations of] at 
least 240 mammography patients under the direct supervision of a qualified 
interpreting physician; and 
(iv) have the following continuing experience: 
(I) <nl>reading<ol> [read] and <nl>interpretation of<ol> [interpret] mammograms 
from the examination of an average of at least 40 mammography patients per month 
over 24 months; and 
(II) <nl>participation<ol> [participate] in education programs, either by 
teaching or completing an average of at least five continuing medical education 
credits in mammography per year at intervals not to exceed three years. 
(B) Operators of equipment. <nl>The x-ray mammographic machines shall be 
operated by an individual currently certified as a medical radiologic 
technologist under Texas Civil Statutes, Article 4512m and who has completed a 
minimum of 40 hours of formal mammographic training as outlined in subsection 
(z)(1) of this section. Medical radiologic technologists shall accumulate an 
average of at least five continuing education hours per year in the technical 
aspects of mammography at intervals not to exceed three years.<ol> 
[(i) The x-ray mammographic machines shall be operated by an individual 
certified as a medical radiologic technologist under Chapter 1096, Acts of the 
70th Legislature, Regular Session, 1987 (Texas Civil Statutes, Article 4512m) 
who has completed:] 
[(I) a minimum of 20 hours of formal mammographic training as outlined in 
subsection (o)(1) of this section;] 
[(II) five years of documented experience performing mammography; or] 
[(III) holds an American Registry of Radiologic Technologists (ARRT) Certificate 
of Advanced Qualification in Mammography.]
[(ii) Medical radiologic technologists meeting the requirements of clause 
(i)(I)-(III) of this subparagraph shall accumulate an average of at least five 
continuing education hours per year in the technical aspects of mammography at 
intervals not to exceed three years.]
(C) Medical physicist. The person evaluating the performance of mammographic 
systems in accordance with these regulations shall hold a current Texas license 
under the Medical Physics Practice Act, Article 4512n in diagnostic radiological 
physics. The person must also be registered with the agency in accordance with 
<nl>sec.289.226(e)<ol> [42.22 of TRCR Part 42 as adopted by reference in 
sec.289.122] of this title and the Texas Radiation Control Act unless exempted 
by <nl>sec.289.226(b)(6) <ol> [42.2(f) of TRCR Part 42 as adopted by reference 
in sec.289.122 ] of this title. <nl>The person must participate in education 
programs, either by teaching or completing an average of at least five 
continuing medical education credits in mammography per year at intervals not to 
exceed three years.<ol> 
(3) Personnel responsibilities. 
(A) Supervising physician responsibilities <nl>shall include the following:<ol> 
[are as follows:] 
(i)-(iv) (No change.) 
(v) to select a technologist to perform the quality control tests; [and] 
(vi) to review the technologists' quality control test results at least every 
three months, or more frequently if consistency has not yet been achieved; and 
[to review the physicists' results annually or more frequently when needed.] 
<nl>(vii)<ol> to review the physicists' results annually or more frequently when 
needed. 
(B) Equipment operators' responsibilities <nl>shall<ol> include performing and 
recording the results of the following tests or tasks at the frequency 
indicated. The facility may assign the responsibility for individual tasks 
within the quality assurance program to a quality control technologist. 
(i)-(xi) (No change.) 
<nl>(C)<ol> Medical physicists' responsibilities include the following: 
<nl>(i)<ol> conducting an annual on-site mammography survey of the entire 
mammography system while the medical physicist is physically present, to include 
performance of the following: 
<nl>(I)<ol> alignment of beam limiting device in accordance with subsection 
(e)(1)(D) of this section; 
<nl>(II)<ol> evaluation of focal spot performance in accordance with subsection 
(e)(1)(E) of this section; 
<nl>(III)<ol> kVp accuracy in accordance with subsection (e)(1)(F) of this 
section; 
<nl>(IV)<ol> beam quality assessment (HVL measurement) in accordance with 
subsection (e)(1)(H) of this section; 
<nl>(V)<ol> AEC performance in accordance with subsection (e)(1)(G) of this 
section; 
<nl>(VI)<ol> uniformity of screen speed; 
<nl>(VII)<ol> average glandular dose in accordance with subsection (e)(2) of 
this section; 
<nl>(VIII)<ol> output reproducibility, mA and mAs linearity in accordance with 
subsection (e)(1)(N) of this section; 
<nl>(IX)<ol> image quality evaluation in accordance with subsection (e)(1)(L) of 
this section; 
<nl>(X)<ol> artifact evaluation; and 
<nl>(ii)<ol> performing a survey that verifies that the mammographic unit meets 
the equipment standards in subsection (e)(1) of this section and the average 
glandular dose meets the requirements of subsection (e)(2) of this section on 
equipment that is initially installed, replaced, or reassembled after moving; 
and 
<nl>(iii)<ol> verifying the average glandular dose within 60 days of replacement 
in accordance with subsection (e)(2) of this section on mammographic units that 
have had a tube or tube insert replaced. 
<nl>(D)<ol> The medical physicist shall provide the following to the facility: 
<nl>(i)<ol> a written report of the results of the tests listed in subparagraph 
(C) of this paragraph; 
<nl>(ii)<ol> written recommendations for corrective actions according to the 
test results; and 
<nl>(iii)<ol> a review of the test results with the supervising physician or 
his/her designee and the technologist(s) performing the quality control. 
<nl>(E)<ol> Records of the survey listed in subparagraph (C)(i) of this 
paragraph shall be maintained by the facility for seven years. 
[(C) Medical physicists' responsibilities include an annual on-site mammography 
survey of the entire mammography system. Records of the survey shall be 
maintained by the facility for seven years. The survey by the medical physicist 
shall include:] 
[(i) performing the tests listed below:] 
[(I) alignment of beam limiting device in accordance with subsection (e)(1)(D) 
of this section;] 
[(II) evaluation of focal spot performance in accordance with subsection 
(e)(1)(E) of this section;] 
[(III) kVp accuracy in accordance with subsection (e)(1)(F) of this section;] 
[(IV) beam quality assessment (HVL measurement) in accordance with subsection 
(e)(1)(H) of this section;] 
[(V) AEC performance in accordance with subsection (e)(1)(G) of this section;] 
[(VI) uniformity of screen speed;] 
[(VII) average glandular dose in accordance with subsection (e)(2) of this 
section; and] 
[(VIII) output reproducibility, mA and mAs linearity in accordance with 
subsection (e)(1)(N) of this section;] 
[(IX) image quality evaluation in accordance with subsection (e)(1)(L) of this 
section; and] 
[(X) artifact evaluation; and] 
[(ii) providing the following to the facility:]
[(I) a written report of the test results;] 
[(II) written recommendations for corrective actions according to the test 
results; and] 
[(III) a review of the test results with the supervising physician or his/her 
designee and the technologist(s) performing the quality control.] 
[(D) The medical physicists' responsibilities shall also include:] 
[(i) performing a survey that verifies that the mammographic unit meets the 
equipment standards in subsection (e)(1) of this section and the average 
glandular dose meets the requirements of subsection (e)(2) of this section on 
equipment that is initially installed, replaced, or reassembled after moving; 
and] 
[(ii) verifying the average glandular dose within 60 days of replacement in 
accordance with subsection (e)(2) of this section on mammographic units that 
have had a tube or tube insert replaced.] 
(4) Self-referral mammography. Any person proposing to conduct a self-referral 
mammography program shall not initiate such a program without prior approval of 
the agency. When requesting such approval, that person shall submit the 
following information: 
(A)-(B) (No change.) 
(C) written procedures to include <nl>methods of<ol> [the following]: 
(i) [method of] advising individuals of the results of the self-referral 
mammography procedure and any further medical needs indicated. If a report is 
sent to the mammography patient, it shall include a summary written in language 
easily understood by a lay person; 
(ii) [method of] advising private physicians of the results of the self-referral 
mammography procedure and any further medical needs indicated; 
(iii) [method of] follow-up to confirm that mammography patients with positive 
findings and mammography patients needing repeat exams[,] have received proper 
notification; and 
(iv) [method of] follow-up to confirm that practitioners have received proper 
notification of patients with positive findings needing repeat exams; and 
(D) (No change.) 
(5) Records required to be kept with units authorized for mobile services. 
(A) In addition to the requirements of <nl>sec.289.203(b) <ol> [22.11 of TRCR 
Part 22 as adopted by reference in sec.289.114] of this title, copies of the 
following shall be kept with units authorized for mobile services: 
(i)-(iii) (No change.) 
(iv) current [TRCR Part 13 as adopted by reference in] sec.289.112 of this 
title, <nl>sec.289.201 of this title, sec.289.202 of this title, sec.289.203 of 
this title, sec.289.226 of this title, and sec.289.230 of this title<ol> [TRCR 
Part 21 as adopted by reference in sec.289.113 of this title, TRCR Part 22 as 
adopted by reference in sec.289.114 of this title, TRCR Part 42 as adopted by 
reference in sec.289.122 of this title, sec.289.201 of this title, and this 
section]. 
(v) copy of certification of mammography system; [and
(vi) certification of inspection or notice of failure from last inspection if 
applicable<nl>; and<ol> [.] 
<nl>(vii)<ol> copy of mammography facility accreditation. 
(B) (No change.) 
(6) Records required at authorized use locations. <nl> Copies of the following 
shall be kept at authorized use locations:<ol>
[(A) In addition to the requirements of 22.11 of TRCR Part 22 as adopted by 
reference in sec.289.114 of this title, copies of the following shall be kept at 
authorized use locations:]
<nl>(A)<ol> [(i)] operating and safety procedures in accordance with paragraph 
(7) of this subsection; 
<nl>(B)<ol> [(ii)] quality assurance program in accordance with paragraph (1) of 
this subsection; 
<nl>(C)<ol> [(iii)]credentials for interpreting physicians operating at that 
location in accordance with paragraph (2)(A) of this subsection; 
<nl>(D)<ol> [(iv)] credentials for medical radiologic technologists operating at 
that location in accordance with paragraph (2)(B) of this subsection; 
<nl>(E)<ol> [(v)] quality control records in accordance with paragraph (1) of 
this subsection; 
<nl>(F)<ol> [(vi)] training and continuing education records for interpreting 
physicians and medical radiologic technologists operating at that location in 
accordance with paragraph (2)(A) and (B) of this subsection;
<nl>(G)<ol> [(vii)]current physicist annual survey of the mammography system; 
<nl>(H)<ol> [(viii)] current sec.289.112 of this title, sec.289.201 of this 
title, sec.289.202 of this title, sec.289.203 of this title, sec.289.204 of this 
title, sec.289.226 of this title, and sec.289.230 of this title; [current TRCR 
divisions "General (G)" and "Registration (R)";] 
<nl>(I)<ol> [(ix)] copy of certification of mammography system; 
<nl>(J)<ol> [(x)] certification of inspection or notification of failure if 
applicable; 
<nl>(K)<ol> [(xi)] records of receipts, transfers, and disposal in accordance 
with paragraph (10) of this subsection; [and] 
<nl>(L)<ol> [(xii)] calibration, maintenance, and modification records in 
accordance with paragraph <nl>(13)<ol> [(15)] of this subsection<nl>; and<ol> 
[.] 
<nl>(M)<ol> copy of mammography facility accreditation. 
[(B) All records required by this section shall be maintained at a specific 
location for inspection by the agency.]
(7) Operating and safety procedures. Each registrant shall have <nl>and 
implement<ol> written operating and safety procedures that shall be made 
available to each individual operating x-ray equipment, including any 
restrictions of the operating technique required for the safe operation of the 
particular x-ray system. These procedures shall include a quality assurance 
program in accordance with paragraph (1) of this subsection. These procedures 
may be included in a radiation protection program required by 
<nl>sec.289.202(e)<ol> [21.101 of TRCR Part 21 as adopted by reference in 
sec.289.113] of this title. 
(8) <nl>Occupational<ol> [Radiation] dose limitation and personnel monitoring. 
Except as otherwise exempted, all individuals who are associated with the 
operation of a radiation machine are subject to the <nl>occupational<ol> 
[radiation] dose requirements of <nl> sec.289.202 (f), (j), (l), and (m)<ol> 
[sec.289.113] of this title <nl>regarding dose limits to individuals and the 
personnel monitoring requirements of sec.289.202(q) of this title.<ol> 
(9) Technique Chart. A chart or manual shall be provided or electronically 
displayed in the vicinity of the <nl>control<ol> [central] panel of each machine 
<nl>that<ol> [which] specifies technique factors to be utilized versus patient's 
anatomical size except for systems that have only automatic exposure control. 
<nl> The technique chart shall be used by all operators.<ol> 
(10)-(13) (No change.) 
(e) Mammographic x-ray systems. 
(1) Equipment standards. Only x-ray systems meeting the following standards 
shall be used: 
(A) System design. <nl> The<ol> [Only] equipment <nl> must have<ol> [that has] 
been specifically designed and manufactured for mammography in accordance with 
21 <nl>Code of Federal Regulations (CFR) <ol> [CFR] 1010.2, 1020.30, and 1020.31 
[shall be used].
(B) (No change.)
(C) Target/Filter. The x-ray system must have the capability of providing 
kVp/target/filter combinations compatible with image receptor systems meeting 
the requirements of <nl>subparagraph (B) of this paragraph <ol> [paragraph 
(1)(B) of this subsection]. 
(D) (No change.) 
(E) Evaluation of focal spot performance: Focal spot performance shall be 
evaluated by measuring both parallel and perpendicular to the anode-cathode axis 
and determining whether they are in compliance with manufacturer-provided and 
National Electrical Manufacturers Association [(NEMA)] specifications. Focal 
spot performance also may be evaluated by determining limiting resolution by 
using a high-contrast resolution pattern. All focal spot dimensions shall be 
measured. 
(F) Accuracy of kVp. The actual kVp shall meet manufacturer's specifications or 
in the absence of manufacturer's specifications shall be within <nl>plus or 
minus<ol> 5.0% of the indicated kVp. 
(G) <nl>Automatic exposure control performance.<ol> 
<nl>Figure: 25 TAC sec.289.230(e)(1)(G)<ol> 
[Figure: 25 TAC sec.289.230(e)(1)(G)] 
(H) Beam quality. When used with screen-film image receptors, and the 
contribution to filtration made by the compression device is included, the HVL 
shall be greater than or equal to kVp/100 + 0.03 (in units of millimeters <nl> 
(mm)<ol> of aluminum 
<nl>(A1)<ol> but <nl>less than<ol> kVp/100 + C <nl>(mm of Al)<ol> [(millimeters 
of aluminum)] where C = 0.12 <nl>mm<ol> [millimeters] Al for 
molybdenum/molybdenum, C = 0.19 <nl>mm<ol> [millimeters] Al for 
molybdenum/rhodium, and C = 0.22 <nl>mm<ol> [millimeters] Al for 
rhodium/rhodium. Facilities with mammographic units with anode/filter 
combinations that do not meet the requirements of this paragraph may request an 
exemption. The exemption request should include manufacturer's specifications 
for HVL for the specific anode/filter combination. For xeroradiography, the HVL 
of the useful beam with the compression device in place shall be at least 1.0 
and not greater than 1.6 <nl>mm<ol> [millimeters] aluminum equivalent, tested at 
the kVp used under clinical conditions. 
(I) (No change.) 
(J) Compression. The x-ray system shall be capable of compressing the breast 
with a force of at least 25 pounds and shall be capable of maintaining this 
compression for at least 15 seconds. For systems with automatic compression, the 
maximum force applied without manual assistance shall not exceed 40 pounds; and 
the chest wall edge of the compression paddle must be aligned with the chest 
wall edge of the image receptor to within <nl>plus or minus<ol> 1.0% of the SID 
with the compression paddle placed 6 <nl>cm<ol> [centimeters] above the patient 
support device. 
(K) Screen-film contact. Cassettes shall not be used for mammography if one or 
more large areas (greater than 1 square centimeter <nl>(cm<sup>2)<ol>) of poor 
contact can be seen in a 40 mesh test.
(L) Image quality. 
(i) The mammographic x-ray imaging system shall be capable of producing images 
of the mammographic phantom in which the following objects are visualized: 
(I) the four largest fibers with thicknesses of: 1.56 <nl> mm<ol> [millimeters], 
1.12 <nl>mm<ol> [millimeters], 0.89 <nl>mm<ol> [millimeters], and 0.75 
<nl>mm<ol> [millimeters]. 
(II) the three largest speck groups with diameters of: 0.54 <nl> mm<ol> 
[millimeters], 0.40 <nl>mm<ol> [millimeters], and 0.32 <nl>mm<ol> [millimeters]; 
and 
(III) the three largest masses with thicknesses of: 2.0 <nl> mm<ol> 
[millimeters], 1.0 <nl>mm<ol> [millimeters], and 0.75 <nl>mm<ol> [millimeters]; 
(ii) The optical density of the film should be greater than 1.20 with control 
limits of <nl>plus or minus<ol> 0.20; while the density difference should be 
[about] 0.40 with control limits of <nl> plus or minus<ol> 0.05 for a 4 
<nl>mm<ol> [millimeter-] thick disc. 
(iii) (No change.) 
(M) Technique settings. The technique settings used for subparagraph (L) of this 
paragraph and paragraph (2) of this subsection shall be those used by the 
facility for its clinical images of a 50% adipose/50% glandular 4.0 to 4.5 
<nl>cm<ol> [centimeters] compressed breast, utilizing the processor used for 
patient films. 
(N) Output reproducibility. Output reproducibility and ma or mAs linearity shall 
comply with the following: 
(i) <nl>Exposure reproducibility.<ol> 
<nl>Figure: 25 TAC sec.289.230(e)(1)(N)(i)<ol> 
[Figure: 25 TAC sec.289.230(e)(1)(N)(i)] 
(ii) Linearity. 
<nl>Figure: 25 TAC sec.289.230(e)(1)(N)(ii)<ol> 
[Figure: 25 TAC sec.289.230(e)(1)(N)(ii)] 
(2) Dose. The average glandular dose for one craniocaudal view of a 4.0 to 4.5 
<nl>cm<ol> [centimeters] (1.8 inch) compressed breast, composed of 50% 
adipose/50% glandular tissue, shall not exceed the following values: 
(A) 100 <nl>mrad<ol> [millirads] (1 <nl>(mGy) <ol> [milligray]) for film/screen 
systems without grid; 
(B) 300 <nl>mrad<ol> [millirads] (3 <nl>(mGy) <ol> [milligray]) for film/screen 
systems with grid; and 
(C) 400 <nl>mrad<ol> [millirads] (4 <nl>(mGy) <ol> [milligray]) for 
xeroradiographic systems. 
(f) Certification requirements. In addition to the requirements of 
<nl>sec.289.226(c) and if applicable, (g)<ol> [42.20 and 42.25 of TRCR Part 42 
as adopted by reference in sec.289.122] of this title, [if applicable,] each 
applicant shall comply with the following.
(1)-(2) (No change.)
(3) An applicant for certification must obtain a certification on each 
mammography system that is used by the applicant or the applicant's agent (for 
the purposes of the requirements of this paragraph, the word "used" refers to 
the entity other than the technologist that directs the application of radiation 
to humans). An application for mammography system certification may contain 
information on multiple mammography x-ray units. Each x-ray unit must be 
identified by referring to the machine's manufacturer, model number, and serial 
number of the control panel. An applicant or applicant's agent shall provide 
proof of current accreditation by an accrediting body approved by the FDA on 
forms prescribed by the agency <nl>or submit an application for accreditation in 
accordance with subsection (p) of this section.<ol>
(4) The applicant shall be qualified by reason of training and experience to use 
the mammographic machines for the purpose requested in accordance with <nl>this 
chapter<ol> [these rules] in such a manner as to minimize danger to public 
health and safety. 
(5) Each applicant shall submit documentation of the following: 
(A) (No change.) 
(B) personnel qualifications <nl>including dates of licensure or 
certification<ol> in accordance with subsection (d)(2) of this section;
(C) model and serial number of each mammographic unit control panel; [and] 
(D) evidence <nl>of the following<ol> by a physicist holding a current Texas 
license under the Medical Physics Practice Act, Article 4512n with a specialty 
in Diagnostic Radiological Physics [that]: 
(i)-(ii) (No change.) 
(E) <nl>self-referral program information in accordance with subsection (d)(4) 
of this section,<ol> if the facility offers self-referral mammography [, self-
referral program information in accordance with subsection (d)(4) of this 
section ;]. 
(6) An applicant for certification of mammography stereotactic systems or other 
unique mammographic imaging modalities shall comply with subsections 
<nl>(d)(1)(A), (B)(xi)-(xiv), and (xvi); (d)(2)(B) and (C); (d)(3)(A)-(C), as 
applicable; (d)(5) and (6) as applicable; (d)(7)-(13); (e)(1)(E)-(H), and (N); 
(f) except for the accreditation requirements of FDA in (f)(3); (g)-(i) as 
applicable; (j)-(n); (o)(2)-(8); and (z)(1) and (2) of this section as 
applicable<ol> [(d)(1)(A), (B)(xi)-(xiv), and (xvi); (2)(B) and (C); (3)(A) and 
(B) as applicable; (3)(C) as applicable; (6) as applicable; (7)-(13); (e)(1)(E)-
(H), and (N); (f) except for the accreditation requirements of FDA in (f)(3); 
(g); (h); (i) as applicable; (j); (k); (l); (m); (n)(1)(B)-(G); (o)(1); and (2) 
as applicable, of this section]. The purpose and scope of this section and the 
definitions in subsection (b) of this section also apply to certification of 
these systems. 
(7) (No change.) 
(8) Notwithstanding the provisions of <nl>sec.289.204 <ol> [12.11(a) of TRCR 
Part 12 as adopted by reference in sec.289.126] of this title, reimbursement of 
application fees may be granted in the following manner: 
(A)-(B) (No change.) 
(C) If the request for full reimbursement authorized by subparagraph (A) of this 
paragraph is denied, the applicant may then request a hearing by appeal to the 
Commissioner of Health for a resolution of the dispute. The appeal will be 
processed in accordance with <nl>Formal Hearing Procedures, sec.1.21-1.34 of 
this title (relating to the Texas Board of Health).<ol> [the formal hearing 
procedures of the Texas Department of Health, sec.sec.1.21-1.34 of this title 
(relating to Formal Hearing Procedures).] 
(g) Issuance of certification of mammography systems. Issuance of certification 
of mammography systems shall be in accordance with <nl> sec.289.226(k)<ol> 
[42.29 of TRCR Part 42 as adopted by reference in sec.289.122] of this title. 
(h) Specific terms and conditions of certification of mammography systems. 
Specific terms and conditions of certification of mammography systems shall be 
in accordance with <nl>sec.289.226(l)<ol> [42.31 of TRCR Part 42 as adopted by 
reference in sec.289.122] of this title. 
(i) Responsibilities of registrant. 
(1) In addition to the requirements of <nl>sec.289.226(m)(2) and (4)-(7)<ol> 
[42.32(b), (d), (e) and (f) of TRCR Part 42 as adopted by reference in 
sec.289.122] of this title, a registrant shall notify the agency in writing 
prior to any changes that would render the information contained in the 
application or the certification of mammography systems inaccurate. These 
include but are not limited to <nl>the following<ol>: 
(A)-(B) (No change.) 
(C) mammographic x-ray units. 
[(i) A facility with an existing certification of mammography system may begin 
using a new or replacement unit before receiving an updated certification if the 
paperwork regarding the unit has been submitted to the agency with a licensed 
medical physicists's report verifying compliance of the new unit with the 
regulations. The physicist's report is required prior to using the unit on 
patients.] 
[(ii) Loaner units may be used on patients for 60 days without adding the unit 
to the certification. A licensed medical physicist's report verifying compliance 
of the loaner unit with the regulations must be completed prior to use on 
patients. The results of the survey must be submitted to the agency with a cover 
letter indicating period of use.] 
[(iii) Units involved in clinical trial evaluations may be used on patients for 
60 days without adding the unit to an existing certification. A licensed medical 
physicist's report verifying compliance of the loaner unit with the regulations 
must be completed prior to use on patients. The results of the survey must be 
submitted to the agency with a cover letter indicating period of use. If the use 
period will exceed 60 days, the facility will be required to add the unit to 
their certification and a prorated fee will be assessed.] 
[(iv) No fees will be assessed for loaner units or evaluation periods of 60 days 
or less.] 
[(v) Loaner units or units involved in clinical trial evaluations are exempt 
from the inspection requirement in subsection (n)(1)(A) of this section.] 
(2) (No change.) 
<nl>(3)<ol> The following criteria applies to new, replacement, or loaner units 
and units used for clinical trial evaluations. 
<nl>(A)<ol> A facility with an existing certification of mammography system may 
begin using a new or replacement unit before receiving an updated certification 
if the paperwork regarding the unit has been submitted to the agency with a 
licensed medical physicists's report verifying compliance of the new unit with 
the regulations. The physicist's report is required prior to using the unit on 
patients. 
<nl>(B)<ol> Loaner units may be used on patients for 60 days without adding the 
unit to the certification. A licensed medical physicist's report verifying 
compliance of the loaner unit with the regulations must be completed prior to 
use on patients. The results of the survey must be submitted to the agency with 
a cover letter indicating period of use. 
<nl>(C)<ol> Units involved in clinical trial evaluations may be used on patients 
for 60 days without adding the unit to an existing certification. A licensed 
medical physicist's report verifying compliance of the loaner unit with the 
regulations must be completed prior to use on patients. The results of the 
survey must be submitted to the agency with a cover letter indicating period of 
use. If the use period will exceed 60 days, the facility will be required to add 
the unit to their certification and a prorated fee will be assessed. 
<nl>(D)<ol> No fees will be assessed for loaner units or evaluation periods of 
60 days or less. 
<nl>(E)<ol> Loaner units or units involved in clinical trial evaluations are 
exempt from the inspection requirement in subsection (o)(1) of this section. 
<nl>(4)<ol> [(3)] Records of training and experience <nl>and all other 
records<ol> required by this section shall be maintained for review in 
accordance with subsection <nl>(z)(2)<ol> [(o)(2)] of this section. 
(j) Expiration [and termination] of certification of mammography systems. 
[Expiration and termination of certification of mammography systems shall be in 
accordance with 42.33 of TRCR Part 42 as adopted by reference in sec.289.122 of 
this title.] 
<nl>(1)<ol> Except as provided by subsection (l) of this section, each 
certification of mammography systems expires at the end of the day in the month 
and year stated on the certificate of registration on the expiration date 
specified. Expiration of the certification of mammography systems does not 
relieve the registrant of the requirements of this chapter.
<nl>(2)<ol> If a registrant does not submit an application for renewal of the 
certification of mammography systems under subsection (l) of this section, as 
applicable, the registrant shall on or before the expiration date specified in 
the certification of mammography systems: 
<nl>(A)<ol> terminate use of all radiation machines; 
<nl>(B)<ol> submit a record of the disposition of the x-ray units; and 
<nl>(C)<ol> pay any outstanding fees in accordance with sec.289.204 of this 
title. 
<nl>(k)<ol> Termination of certification of mammography systems. When a 
registrant decides to terminate all activities involving radiation machines 
authorized under the certification of mammography systems, the registrant shall: 
<nl>(1)<ol> notify the agency immediately; 
<nl>(2)<ol> request termination of the certification of mammography systems in 
writing; 
<nl>(3)<ol> submit a record of the disposition of the x-ray units; and 
<nl>(4)<ol> pay any outstanding fees in accordance with sec.289.204 of this 
title. 
<nl>(l)<ol> [(k)] Renewal of certification of mammography systems. 
(1) Application for renewal of certification shall be filed in accordance with 
<nl>this<ol> subsection [(f) of this section] and <nl>sec.289.226(c) and (g)<ol> 
[42.20 and 42.25 of TRCR Part 42 as adopted by reference in sec.289.122] of this 
title, as applicable.
(2) If a registrant files an application in proper form at least 30 days before 
the existing certification expires, such existing certification shall not expire 
until the application status has been determined by the agency. 
(3) A certification for a mammographic unit is valid for <nl>three years from 
the date of issuance unless the certification of the facility is revoked prior 
to such deadlines<ol> [one year and may be renewed annually on payment of the 
required fee]. <nl> This is effective for certificates issued after September 1, 
1997.<ol> 
(A) If a registrant fails to renew the certification by the required date, the 
registrant may renew the certification on payment of the <nl> annual<ol> 
[renewal] fee and a late fee. If the certification is not renewed before the 
181st day after the date on which the <nl>certification <ol> [certificate] 
expired, the registrant must apply for an original certification under this 
section. 
(B) A mammography system may not be used after the expiration date of the 
certification unless the holder of the expired certification has made a timely 
and sufficient application for renewal of the certificate as provided in 
<nl>this<ol> subsection <nl>and sec.289.226(c) and (g)<ol> [(j) of this section 
and 42.20 or 42.25 of TRCR Part 42 as adopted by reference in sec.289.122] of 
this title, as applicable. 
<nl>(m)<ol> [(l)] Modification and revocation of certification of mammography 
systems. Modification and revocation of certification of mammography systems 
shall be in accordance with <nl>sec.289.226(q)<ol> [42.35 of TRCR Part 42 as 
adopted by reference in sec.289.122] of this title. 
<nl>(n)<ol> [(m)] Reciprocal recognition of out-of-state certificates of 
registration. Mammographic x-ray units will not be granted reciprocal 
recognition and must comply with the requirements of [subsection (e) of] this 
section. 
<nl>(o)<ol> [(n)] Inspections. In addition to the requirements of sec.289.201(e) 
of this title, the following applies to inspections of mammography systems. 
[(1) Routine inspection of mammography systems.] 
<nl>(1)<ol> [(A)] The agency shall inspect each mammography system that receives 
a certification in accordance with this chapter not later than the 60th day 
after the date the certification is issued.
<nl>(2)<ol> [(B)] The agency shall inspect, at least once annually, each 
mammography system that receives a certification.
<nl>(3)<ol> [(C)] To protect the public health, the agency may conduct more 
frequent inspections than required by this <nl>subsection<ol> [section]. 
<nl>(4)<ol> [(D)] The agency shall make reasonable attempts to coordinate 
inspections in this chapter with other inspections required in accordance with 
this section for the facility where the mammography system is used. 
<nl>(5)<ol> [(E)] After each satisfactory inspection, the agency shall issue a 
certificate of inspection for each mammography system inspected. The certificate 
of inspection must be posted at a conspicuous place on or near the place where 
the mammography system is used. The certificate of inspection shall <nl>include 
the following<ol>: 
<nl>(A)<ol> [(i)] <nl>specific identification of <ol> [specifically identify] 
the mammography system inspected;
<nl>(B)<ol> [(ii)] [state] the name and address of the facility where the 
mammography system was used at the time of the inspection; and 
<nl>(C)<ol> [(iii)][state] the date of the inspection. 
<nl>(6)<ol> [(F)] Any Severity Level I violation [as described in 13.9 of TRCR 
Part 13 as adopted by reference in sec.289.112 of this title,] found by the 
agency [,] constitutes grounds for posting notice of failure of the mammography 
system to satisfy agency requirements. 
<nl>(A)<ol> [(i)] Notification of such failure shall be posted: 
<nl>(i)<ol> [(I)] on the mammography x-ray unit at a conspicuous place if the 
violation is machine-related; or 
<nl>(ii)<ol> [(II)]near the place where the mammography system practices if the 
violation is personnel-related; and
<nl>(iii)<ol> [(III)] in a sufficient number of places to permit the patient to 
observe the notice. 
<nl>(B)<ol> [(ii)] The notice of failure shall remain posted until the facility 
is authorized to remove it by the agency. A facility may post documentation of 
corrections of the violations submitted to the agency along with the notice of 
failure until approval to remove the notice of failure is received from the 
agency. 
<nl>(7)<ol> [(G)] The agency <nl> shall<ol> [may] require registrants to notify 
[mammography] patients <nl>on whom the facility performed a mammography during 
the 30 days preceding the date of the inspection that revealed the failure. 
<ol>[whose health or safety may have been or may be adversely affected by 
failure of a mammography system to meet the requirements of the Act or this 
chapter.] <nl>The facility shall:<ol> 
<nl>(A)<ol> inform the patient that the mammography system failed to satisfy the 
department's certification standards;
<nl>(B)<ol> recommend that the patient have another mammogram performed at a 
facility with a certified mammography system; and 
<nl>(C)<ol> <nl>list the three facilities closest to the original testing 
facility that have a certified mammography system.<ol>
[(i) The patient notification, if required, shall include:] 
[(I) explanation of the mammography system failure to the patient; and] 
[(II) the potential consequences to the mammography patient.] 
[(ii) The registrant shall maintain a record of the mammography patients 
notified in accordance with subsection (d)(1)(G) of this section for inspection 
by the agency. The records shall include the name and address of each 
mammography patient notified, date of notification, and a copy of the text sent 
to the individual.] 
<nl>(8)<ol> In addition to the requirements of paragraph (7) of this subsection, 
the agency may require a facility to notify a patient of any other failure of 
the facility's mammography system to meet the agency's certification standards. 
<nl>(9)<ol> The patient notification shall include the following: 
<nl>(A)<ol> explanation of the mammography system failure to the patient; and 
<nl>(B)<ol> the potential consequences to the mammography patient. 
<nl>(10)<ol> The registrant shall maintain a record of the mammography patients 
notified in accordance with paragraphs (7) and (8) of this subsection for 
inspection by the agency. The records shall include the name and address of each 
mammography patient notified, date of notification, and a copy of the text sent 
to the individual.
[(2) A mammography system that has been issued a certification under subsection 
(f)(3) of this section is exempt from the inspection requirements of paragraph 
(1)(A) of this subsection.]
<nl>(p)<ol> Accreditation of mammography facilities. 
<nl>(1)<ol> All mammography facilities must be accredited by an authorized FDA 
accrediting body. All facilities applying for and receiving accreditation 
through the agency shall comply with sec.289.112 of this title, sec.289.201(c), 
(h)-(j), and (l)-(n) of this title, sec.289.203 of this title, subsections (b), 
(c)(1)-(3), (d)(1)-(3) and (7)-(13), and (e)(1) and (2) of this section. 
<nl>(2)<ol> In order to be accredited by the agency, the applicant shall submit 
an application for accreditation on forms and accompanying instructions 
prescribed by the agency. 
<nl>(A)<ol> Each application must be signed by a licensed physician. 
<nl>(B)<ol> The agency may at any time after the filing of the original 
application require further statements in order to enable the agency to 
determine whether the accreditation document should be issued, denied, modified, 
or revoked. 
<nl>(C)<ol> Applications and documents submitted to the agency may be made 
available for public inspection except that the agency may withhold any document 
or part thereof from public inspection in accordance with sec.289.201(n) of this 
title. 
<nl>(D)<ol> Each application for accreditation shall be accompanied by the fee 
prescribed in subsection (q) of this section. 
<nl>(E)<ol> Each applicant shall submit documentation of the following: 
<nl>(i)<ol> quality assurance program in accordance with subsection (d)(1) of 
this section; 
<nl>(ii)<ol> personnel qualifications, training, and experience in accordance 
with subsection (d)(2) of this section; 
<nl>(iii)<ol> model and serial number of each mammographic unit control panel; 
<nl>(iv)<ol> procedures on clinical image interpretation, patient notification, 
and patient data tracking; and 
<nl>(v)<ol> evidence of the following by a physicist holding a current Texas 
license under the Medical Physics Practice Act, Article 4512n with a specialty 
in Diagnostic Radiological Physics: 
<nl>(I)<ol> each unit meets the equipment standards in subsection (e)(1) of this 
section; and 
<nl>(II)<ol> the average glandular dose for one craniocaudal view for each unit 
does not exceed the appropriate values in subsection (e)(2) of this section. 
<nl>(F)<ol> Upon notification by the agency, each applicant shall directly 
submit the following to the American College of Radiology (ACR) in accordance 
with their procedures: 
<nl>(i)<ol> clinical images; 
<nl>(ii)<ol> phantom images; and 
<nl>(iii)<ol> processor data. 
<nl>(q)<ol> Fees for accreditation of mammography facilities. 
<nl>(1)<ol> Each application for accreditation of a mammography facility shall 
be accompanied by a nonrefundable fee. No application will be accepted for 
filing or processed prior to payment of the full amount specified.
<nl>(2)<ol> A nonrefundable fee in accordance with paragraph (4) of this 
subsection shall be paid every three years for each accredited mammography unit. 
The fee shall be paid in full on or before the expiration date of the 
accreditation document if the facility wishes to remain accredited with the 
agency. 
<nl>(3)<ol> Fee payments shall be in cash or by check or money order made 
payable to the Texas Department of Health. The payments may be made by personal 
delivery to the Bureau of Radiation Control, Texas Department of Health, 1100 
West 49th Street, Austin, Texas, or mailed to the Bureau of Radiation Control, 
Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189. 
<nl>(4)<ol> Fees for accreditation of mammography facilities are as follows. 
<nl>(A)<ol> The accreditation fee for the first mammography unit is $720. 
<nl>(B)<ol> The accreditation fee for each additional mammography unit is $345. 
<nl>(C)<ol> The fee for reevaluation of clinical images is $220 per unit. 
<nl>(r)<ol> Issuance of accreditation of a mammography facility. An 
accreditation document will be issued when the mammography facility meets the 
requirements of subsection (p) of this section and becomes accredited by the 
agency. In order for an accreditation to be issued, the agency must be notified 
by the ACR that the applicant met criteria for clinical images, phantom images, 
and processor quality control. 
<nl>(s)<ol> Specific terms and conditions of accreditation of mammography 
facilities. 
<nl>(1)<ol> Each accreditation document issued in accordance with this section 
shall be subject to the applicable provisions of the Act, now or hereafter in 
effect, and to the applicable requirements and orders of the agency. 
<nl>(2)<ol> No accreditation document issued by the agency under this section 
shall be transferred, assigned, or in any manner disposed of, either voluntarily 
or involuntarily, to any person. 
<nl>(t)<ol> Responsibilities of an accredited facility. A facility shall notify 
the agency at least annually of any changes that would render the information 
contained in the application inaccurate.
<nl>(u)<ol> Expiration and renewal of accreditation of mammography facilities. 
<nl>(1)<ol> The accreditation shall expire on the date specified on the 
accreditation document. 
<nl>(2)<ol> Application for renewal of accreditation shall be filed in 
accordance with subsection (p) of this section and subsection (q) of this 
section. 
<nl>(3)<ol> If a registrant files an application in proper form at least 30 days 
before the existing accreditation expires, such existing accreditation shall not 
expire until the application status has been determined by the agency. 
<nl>(4)<ol> Accreditation for a mammographic facility is valid for three years 
from the date of issuance, unless accreditation of the facility is revoked prior 
to such deadline. 
<nl>(5)<ol> Issuance of renewal of accreditation shall be in accordance with 
subsection (r) of this section. 
<nl>(v)<ol> Denial of accreditation of mammography facilities. 
<nl>(1)<ol> Any application for accreditation may be denied by the agency when 
the applicant fails to meet established criterion for accreditation or fails to 
respond to requests for information. Agency action on an application will be 
abandoned due to lack of response by the applicant. Abandonment of such actions 
does not provide an opportunity for a hearing; however, the applicant retains 
the right to resubmit the application at any time. 
<nl>(2)<ol> Before the agency denies an application for accreditation, the 
agency shall give notice by personal service or by certified mail, return 
receipt requested, of the intent to deny, the facts warranting the denial, and 
afford the applicant an opportunity for a hearing. If no request for a hearing 
is received by the director of the Radiation Control Program within 30 days of 
personal service or the date of mailing, the agency may proceed to deny. The 
applicant shall have the burden of proof showing cause why the application 
should not be denied. 
<nl>(w)<ol> Modification and revocation of accreditation of mammography 
facilities. 
<nl>(1)<ol> Any accreditation document may be revoked, suspended, or modified, 
in whole or in part, for any of the following: 
<nl>(A)<ol> any material false statement in the application or any statement of 
fact required under provisions of the Act; 
<nl>(B)<ol> conditions revealed by such application or statement of fact or any 
report, record, or inspection, or other means that would warrant the agency to 
refuse to grant an accreditation document on an original application; or 
<nl>(C)<ol> violation of, or failure to observe any of the terms and conditions 
of the Act, this chapter, or of the accreditation document, or order of the 
agency. 
<nl>(2)<ol> Except in cases of willfulness or those in which the public health, 
interest or safety requires otherwise, no accreditation document shall be 
modified, suspended, or revoked unless, prior to the institution of proceedings 
therefore, facts or conduct that may warrant such action shall have been called 
to the attention of the registrant in writing and the registrant shall have been 
afforded an opportunity to demonstrate or achieve compliance with all lawful 
requirements. 
<nl>(x)<ol> On-site facility visit. Each accredited facility shall: 
<nl>(1)<ol> afford the agency, at all reasonable times, opportunity to audit the 
facility where mammography equipment or associated equipment is used or stored; 
and 
<nl>(2)<ol> make available to the agency for inspection, upon reasonable notice, 
records maintained in accordance with this chapter.
<nl>(y)<ol> Complaints. Each facility shall publish the following address where 
complaints may be filed with the Mammography Accreditation Program of the Bureau 
of Radiation Control: Texas Department of Health, Bureau of Radiation Control, 
Mammography Accreditation Program, 1100 West 49th Street, Austin, Texas 78756-
3189. 
<nl>(z)<ol> [(o)] Appendices. 
(1) Subjects to be included in mammography training shall be as follows: 
(A) anatomy and physiology of the female breast <nl>that <ol> [which] shall 
include:
(i) mammary glands; 
(ii) external anatomy; 
(iii) retromammary space; 
(iv) central portion; 
(v) cooper's ligament; 
(vi) vessels, nerves, lymphatics; and 
(vii) breast tissue: 
(I) fibro-glandular; 
(II) fibro-fatty; 
(III) fatty; and 
(IV) lactating; [and] 
(B) mammography positioning <nl>that<ol> [which] shall include actual 
positioning of patients and/or models as follows: 
(i) craniocaudal; 
(ii) mediolateral oblique; 
(iii) supplemental; 
(iv) magnification; 
(v) errors in positioning; 
(vi) postoperative breast and the augmented breast; 
(vii) breast localization and specimen radiography; and 
(viii) use of compression; 
(C) technical factors; 
(D) film evaluation and critique; 
(E) pathology; and 
(F) quality assurance program. 
(2) Time requirements for record keeping shall be in accordance with the 
following chart. 
<nl>Figure: 25 TAC sec.289.230(z)(2)<ol> 
[Figure: 25 TAC sec.289.230(o)(2)] 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805506
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 458-7236

TITLE 28. INSURANCE
PART I. Texas Department of Insurance
CHAPTER 5. Property and Casualty Insurance
SUBCHAPTER N. Residential Property Insurance Market Assistance Program
28 TAC sec.sec.5.10001, 5.10003-5.10004, 5.10007-5.10009, 5.10011
The Texas Department of Insurance proposes amendments to sec.sec.5.10001, 
5.10003-5.10004, 5.10007-5.10009, and 5.10011, concerning the plan of operation 
of the Residential Property Insurance Market Assistance Program (MAP), pursuant 
to the Insurance Code, Article 21.49-12. Article 21.49-12 was enacted by the 
Texas Legislature in 1995 (Acts 1995, 74th Legislature, p. 3008, ch. 415, sec.5, 
eff. August 28, 1995) to require the Commissioner to establish a voluntary 
market assistance program to assist consumers in obtaining residential property 
insurance coverage, defined in Article 21.49-12, sec.1(a) as homeowners, 
residential fire and allied lines, and farm and ranch owners coverage, in 
underserved areas that are determined and designated by the Commissioner under 
separate rule (28 TAC sec.5.3700). The purpose of the MAP is to provide a fair, 
efficient, and economical voluntary mechanism to assist Texas consumers in 
obtaining residential property insurance in designated underserved areas of the 
state, including rural areas. The proposed amendments are necessary to update 
the plan of operation (i) to provide for the processing of MAP applications by 
Department staff in lieu of the contracting entity; and (ii) to incorporate 
changes because farm and ranch owners and farm and ranch insurance are now 
regulated as commercial property insurance pursuant to Article 5.13-2 of the 
Insurance Code. These amendments are recommended for adoption by the MAP 
Executive Committee pursuant to Article 21.49-12, sec.2(a) of the Insurance Code 
and sec.5.10012 of the plan of operation (also sec.5.10012 of this title). The 
amendments are proposed to be effective July 1, 1998. No amendments are proposed 
to sec.5.10002 (Authority), sec.5.10005 (Rates), sec.5.10006 (Eligibility for 
Referral), sec.5.10010 (Executive Committee), sec.5.10012 (Amendments to Plan of 
Operation), sec.5.10013 (Immunity from Liability), sec.5.10014 (Termination of 
the MAP), and sec.5.10015 (Severability) of the MAP plan of operation. 
Processing of Applications by the Department. The following proposed amendments 
to sec.sec.5.10001, 5.10003, and 5.10007-5.10009, and 5.10011 concern the 
processing of MAP applications by Department staff in lieu of the Department's 
contracting entity. The proposed amendment to sec.5.10001 (relating to Purpose 
and Scope of the MAP plan of operation) deletes the reference to the 
Department's contracting entity in subsection (b)(8) because it is no longer 
necessary for the plan of operation to address the role and responsibilities of 
the Department's contracting entity. Section 5.10003 (relating to Definitions) 
is amended to delete the definition for "contracting entity" and to add number 
designations for the defined terms in accordance with recently adopted Texas 
Register form and style rules. Section 5.10007 (relating to Participating 
Insurers) is amended in subsection (b)(2) to delete reference to the contracting 
entity's electronic bulletin board and to provide that an insurer may use any 
criteria from the MAP application in selecting applications for review. Section 
5.10008 (relating to Participating Agents) is amended in subsection (d)(1)(D) to 
delete the reference to the contracting entity's electronic database and to 
provide, therefore, that within five working days after the issuance date of the 
insurance policy issued through the MAP, the insurer shall notify the Department 
by mail or facsimile transmission, in lieu of via the electronic database, that 
the insurance policy was issued. Section 5.10009 (relating to Operations) is 
amended in subsection (b) to provide that the Department's MAP Division, in lieu 
of the contracting entity, shall perform the application review and referral as 
specified in subsection (b) (relating to Application review) and subsection (c) 
(relating to Referral of applications) of sec.5.10009. Subsection (b)(1) and 
(b)(2) and subsection (c)(1)(A)-(C), (c)(2), and (c)(3) are amended to revise 
the application review and referral process since a contracting entity will no 
longer be involved in the processing of MAP applications. Under the proposed 
process, the Department's MAP Division will perform the application review and 
referral process in lieu of the contracting entity. Subsection (d) (relating to 
Insurers' processing of selected applications) of sec.5.10009 is amended in 
paragraph (1)(A) to delete reference to the contracting entity's electronic 
bulletin board and to provide that an insurer may select MAP applications for 
review based on criteria contained in the application. Subsection (d) (relating 
to Insurers' processing of selected applications) of sec.5.10009 is also amended 
in paragraphs (2)(B), (3)(A)-(B), and (4) to delete the reference to the 
contracting entity's electronic database and to provide instead for the 
Department's MAP Division to be notified by mail or facsimile transmission as 
part of the procedures relating to the insurer's determination of whether to 
issue a premium quote and issuance of a premium quote. An amendment is also 
proposed to subsection (d)(5) to delete the provision of the removal of an 
application from the contracting entity's electronic bulletin board upon 
acceptance of a quote by the applicant and to provide instead that a MAP 
application shall be considered inactive upon acceptance of a quote by the 
applicant. Amendments are proposed to subsection (f) (relating to 
Confidentiality of documents) of sec.5.10009 to delete the application of 
confidentiality requirements to the contracting entity and to amend the 
applicant's authorization to forward copies of the MAP application to delete the 
contracting entity from this authorization and to provide instead that copies of 
the application may be forwarded directly to prospective insurers for the sole 
purpose of selecting risks for review for the purpose of writing residential 
property insurance. Section 5.10011 (relating to Criteria and Procedures for 
Mandatory Participation by Insurers) is amended in subsection (b)(2) (relating 
to Implementation of mandatory MAP on Commissioner's own motion) to delete 
reference to the contracting entity's electronic bulletin board and to provide 
instead that an application shall not be counted for purposes of the 
Commissioner's consideration (under subparagraphs (A) and (B)) in determining to 
hold a hearing to consider implementation of mandatory participation by insurers 
in the MAP unless the application has been either active for 90 days or a policy 
has been issued, whichever occurs first. A parallel amendment is proposed to 
sec.5.10011(c)(3)(B) concerning the Executive Committee's determination of the 
need to recommend implementation of mandatory MAP under clauses (i) and (ii) of 
subsection (c)(3)(B). 
Farm and Ranch Coverage Regulated as Commercial Line. The remaining proposed 
amendments are related to the regulation of farm and ranch owners and farm and 
ranch insurance as commercial property insurance. The Legislature enacted S.B. 
1499 (Acts 1997, 75th Leg., p. 5030, ch. 1330, sec.1, eff. Sept. 1, 1997) to 
provide that effective January 1, 1998, farm and ranch and farm and ranch owners 
insurance are no longer regulated as personal lines coverage pursuant to 
Articles 5.35 and 5.101 of the Insurance Code, but rather are to be regulated as 
commercial property insurance under Article 5.13-2 of the Insurance Code. This 
legislative enactment necessitates the following proposed changes to sec.5.10004 
(relating to Policy Forms and Types of Coverage) of the MAP plan of operation. 
Subsection (b)(1) is amended to add new subparagraphs (C) and (D) to include a 
farm and ranch owners policy form and endorsements filed by an individual 
insurer pursuant to Article 5.13-2 of the Insurance Code and approved by the 
Commissioner and a farm and ranch policy form and endorsements filed by an 
individual insurer pursuant to Article 5.13-2 of the Insurance Code and approved 
by the Commissioner as forms that may be used in Class 1 designated underserved 
areas in writing coverage through the MAP; and to redesignate current 
subparagraph (C) as new subparagraph (E). Subsection (b)(2) is amended to add 
new subparagraphs (B) and (C) to include a farm and ranch owners policy form and 
endorsements filed by an individual insurer pursuant to Article 5.13-2 of the 
Insurance Code and approved by the Commissioner and a farm and ranch policy form 
and endorsements filed by an individual insurer pursuant to Article 5.13-2 of 
the Insurance Code and approved by the Commissioner as forms that may be used in 
Class 2 designated underserved areas in writing coverage through the MAP; and to 
redesignate current subparagraph (B) as new subparagraph (D). Amendments are 
proposed to subsection (c) of sec.5.10004 to provide that the form rules 
governing the writing of farm and ranch policies and farm and ranch owners 
policies in the MAP shall be the rules filed by individual insurers and approved 
by the Commissioner pursuant to Article 5.13-2 of the Insurance Code. Subsection 
(d) of sec.5.10004 is amended in paragraphs (2)(F) and (3)(E) to provide that 
the types of coverage that may be provided in Class 1 and Class 2 designated 
underserved areas include any other coverage available under policy forms and 
endorsements filed by an individual insurer pursuant to Article 5.13-2 for the 
purpose of providing farm and ranch or farm and ranch owners coverage and 
approved by the Commissioner. 
David Durden, deputy commissioner of the automobile and homeowner's division of 
the property and casualty program, has determined that for each year of the 
first five years the proposed amendments are in effect, the estimated reduction 
in costs to the state as a result of enforcing or administering the proposed 
amendments will be a maximum reduction of approximately $118,000.00. The actual 
reduction would probably be less than that amount and would depend upon the 
agreement that would have been negotiated by the Department with the contracting 
entity if the contracting entity were to continue to perform the application 
review and referral functions. This cost reduction results from the fact that 
the Department will use existing staff to perform the MAP application review and 
other application processing procedures that have been performed by a 
contracting entity under the current plan of operation. Mr. Durden has 
determined that for each year of the first five years the proposed amendments 
are in effect, there will be no fiscal implications to local government as a 
result of enforcing or administering the amended sections and there will be no 
effect on local employment or the local economy as a result of enforcing or 
administering the amended sections. 
Mr. Durden has further determined that for each year of the first five years the 
proposed amendments are in effect, the public benefit anticipated as a result of 
administering the proposed amendments will be the operation of a legislatively 
mandated program in an efficient, cost-effective manner with the goal of 
increasing the availability of residential property insurance through the 
licensed admitted market for risks located in those areas of the state that are 
designated as underserved areas for purposes of the MAP. Consumers in these 
designated underserved areas are unable to purchase residential property 
insurance through the licensed admitted market because insurers are unwilling to 
write such coverage. Thus, without the operation of the MAP, consumers in these 
designated underserved areas must either purchase residential property insurance 
from unlicensed non-admitted insurers at very high costs or go without this 
coverage. The operation of the MAP under the proposed amendments will continue 
to provide a fair, efficient, and economical voluntary mechanism to assist Texas 
consumers in obtaining residential property insurance in designated underserved 
areas of the state, including rural areas. Through the operation of the MAP, 
consumers will have the opportunity to purchase residential property insurance 
from licensed admitted insurance carriers based on each insurers' underwriting 
guidelines and rates determined in accordance with the provisions of the 
Insurance Code applicable to that insurer. Any possible economic costs to 
persons, i.e., applicants, participating agents, and participating insurers 
complying with the amended sections for each year of the first five years the 
proposed amendments will be in effect are the result of the legislative 
enactment of Article 21.49-12 of the Insurance Code and are not as a result of 
the adoption, enforcement, or administration of the proposed amendments except 
as identified in the following items (i) - (v). Under the amended sections, 
participating agents and insurers will no longer incur costs, as required under 
the current plan of operation, for accessing the contracting entity's electronic 
data base for purposes of (i) in amended sec.5.10009(d)(1)(A), selection of 
applications for review; under the proposed amendments, eligible applications 
will be faxed or mailed to insurers at no costs to the insurers; (ii) in amended 
sec.5.10009(d)(2)(B), notifying the Department of the issuance of a premium 
quote or the refusal to quote; under the proposed amendments, means of 
notification is by mail or facsimile transmission with an estimated maximum cost 
of $1.00 per notice with total costs varying from insurer to insurer based on 
number of applicants quoted by each insurer and means of notification; (iii) in 
amended sec.5.10009(d)(3)(A), reporting to the Department the quote information; 
under the proposed amendments, means of reporting is by mail or facsimile 
transmission with an estimated maximum cost of $1.00 per notice with total costs 
varying from insurer to insurer based on number of applicants quoted by each 
insurer and means of notification; (iv) in amended sec.5.10009(d)(3)(B), 
notifying the Department that the quote has been accepted or rejected by the 
applicant; under the proposed amendments, means of notification is by mail or 
facsimile transmission with an estimated maximum cost of $1.00 per notice with 
total costs varying from insurer to insurer based on number of applicants quoted 
by each insurer and means of notification; and (v) in amended sec.5.10009(d)(4), 
notifying the Department that the insurance policy was issued; under the 
proposed amendments, means of notification is by mail or facsimile transmission 
with an estimated maximum cost of $1.00 per notice with total costs varying from 
insurer to insurer based on number of applicants quoted by each insurer and 
means of notification. All of the notifications in items (ii) - (v) are to be 
provided to the Department on a single multi-purpose form that has been prepared 
by the Department; insurers will copy, complete, and mail or fax the 
notification form to the Department. 
Mr. Durden has determined that any possible economic costs to any participating 
agent or insurer qualifying as a small business under the Government Code 
sec.2006.001 who comply with the amended sections for each year of the first 
five years the proposed amendments will be in effect are the result of the 
legislative enactment of Article 21.49-12 of the Insurance Code and not as a 
result of the adoption, enforcement, or administration of the proposed 
amendments except as identified in the aforementioned items (i) - (v). Small 
businesses would incur the same costs identified in the aforementioned items (i) 
- (v) as the largest business because these types of costs are not dependent 
upon the size of the insurer but are rather dependent upon the number of 
applicants quoted, the number of insurance policies issued, and the means of 
notification to the Department used by the insurer. Both small insurers and 
large insurers would incur approximately the same costs for the same number of 
quotes, the same number of policies issued, and the same means of notification. 
Also, cost per hour of labor would be approximately the same for the small and 
large insurer. The costs identified in the aforementioned items (i) - (v) may 
not be waived for any insurer who qualifies as a small business under the 
Government Code, sec.2006.001 because the notifications are necessary for the 
Department to comply with the legislative mandate to administer the MAP in 
accordance with the statutory requirements in Article 21.49-12 of the Insurance 
Code.
Comments on the proposed amendments must be submitted within 30 days after 
publication of the proposed amendments in the Texas Register to the Office of 
the Chief Clerk, Texas Department of Insurance, P.O. Box 149104, MC #113-2A, 
Austin, Texas, 78714-9104. An additional copy of the comment is to be submitted 
to David Durden, Deputy Commissioner, Property and Casualty Division, Texas 
Department of Insurance, P. O. Box 149104, MC #104-5A, Austin, Texas, 78714-
9104. Pursuant to Article 21.49-12, sec.2(a) of the Insurance Code, a hearing is 
required before the Commissioner may adopt any amendments to the MAP plan of 
operation.
The amendments are proposed pursuant to the Insurance Code, Articles 21.49-12 
and 1.03A, and in accordance with the Government Code sec.sec.2001.004-2001.038. 
Article 21.49-12 sec.1(a) requires the Commissioner to establish a voluntary 
market assistance program to assist Texas consumers in obtaining residential 
property insurance coverage in underserved areas, which shall be determined and 
designated by the Commissioner by rule (28 TAC sec.5.3700) using the standards 
specified in Article 5.35-3, sec.1 of the Insurance Code. Article 21.49-12 
sec.2(a) provides that the MAP Executive Committee may submit suitable 
amendments to the plan of operation to the Commissioner for adoption by rule 
after notice and hearing. 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. 
The following statutes are affected by this proposal: sec.sec.5.10001, 5.10003-
5.10004, 5.10007-5.10009, and 5.10011 -- Insurance Code, Article 21.49-12.

sec.5.10001. Purpose and Scope. 
(a) (No change.) 
(b) The purpose of this plan of operation, which is contained in 
sec.sec.5.10001-5.10015 of this title (relating to the Residential Property 
Insurance Market Assistance Program Plan of Operation), is to specify the 
procedures and methods of operation of the Residential Property Insurance Market 
Assistance Program, including: 
(1)-(7) (No change.) 
(8) role and responsibilities of the Commissioner of Insurance <nl>and<ol> the 
Texas Department of Insurance [and the Department's contracting entity]; 
(9)-(12) (No change.) 

sec.5.10003. Definitions. 
The following words and terms when used in this plan of operation, which is 
contained in sec.sec.5.10001-5.10015 of this title (relating to the Residential 
Property Insurance Market Assistance Program Plan of Operation), shall have the 
following meanings unless the context clearly indicates otherwise.
<nl>(1)<ol> Agent commissions--The portion of the premium paid by an insurer 
participating in the Residential Property Insurance Market Assistance Program 
for production of the residential property insurance business pursuant to 
Article 21.49-12 sec.4 of the Insurance Code. 
<nl>(2)<ol> Application-- The form promulgated by the Texas Department of 
Insurance to be completed by an applicant and the originating agent and 
submitted to the Texas Department of Insurance to apply for assistance in 
obtaining residential property insurance through the Residential Property 
Insurance Market Assistance Program. 
<nl>(3)<ol> Commissioner--Commissioner of Insurance of the State of Texas. 
[Contracting entity --The qualified information service vendor with whom the 
Texas Department of Insurance has contracted to develop and maintain software 
and to provide services for the Residential Property Insurance Market Assistance 
Program as specified in this plan of operation, which is contained in 
sec.sec.5.10001-5.10015 of this title (relating to the Residential Property 
Insurance Market Assistance Program Plan of Operation), including processing of 
applications; development, use, and maintenance of an electronic bulletin board 
and integrated database; and production of data reports.] 
<nl>(4)<ol> Department--Texas Department of Insurance.
<nl>(5)<ol> Designated underserved area--An area determined and designated by 
rule as an underserved area by the Commissioner of Insurance, pursuant to 
Article 21.49-12 of the Insurance Code, using the standards specified in Article 
5.35-3 sec.1 of the Insurance Code. 
<nl>(6)<ol> Executive Committee--The 11-member body appointed by the 
Commissioner of Insurance and authorized pursuant to Article 21.49-12 of the 
Insurance Code to advise and consult with the Commissioner with regard to the 
administration of the Residential Property Insurance Market Assistance Program.
<nl>(7)<ol> Insurer--Any insurer licensed to write property or casualty 
insurance and actually writing residential property insurance in Texas, 
including Lloyd's, reciprocals, or interinsurance exchanges; an insurer is 
actually writing residential property insurance in Texas if the insurer has 
reported under the statistical plan a positive number for residential property 
insurance direct written premium during the last reporting period.
<nl>(8)<ol> Issuing agent-- 
(A) A licensed local recording agent appointed to represent the insurer 
providing residential property insurance coverage through the Residential 
Property Insurance Market Assistance Program who signs, executes, and delivers 
the policies of insurance; maintains a record of the business; examines and 
inspects the risk; receives and collects premiums; and performs other customary 
duties of a local recording agent; or 
(B) A salaried representative for an insurer whose plan of operation does not 
contemplate the use of local recording agents appointed to represent the insurer 
providing residential property insurance coverage through the Residential 
Property Insurance Market Assistance Program who signs, executes, and delivers 
the policies of insurance; maintains a record of the business; examines and 
inspects the risk; and receives and collects premiums; and performs other 
customary duties of a local recording agent. 
<nl>(9)<ol> Manufactured home--Mobile home, manufactured housing, or 
manufactured home as defined in the Texas Manufactured Housing Standards Act 
(Texas Revised Civil Statutes, Article 5221f). 
<nl>(10)<ol> MAP--the Residential Property Insurance Market Assistance Program 
authorized and operated pursuant to Article 21.49-12 of the Insurance Code to 
assist consumers in Texas in obtaining residential property insurance coverage 
in underserved areas as determined and designated by the Commissioner of 
Insurance by rule. 
<nl>(11)<ol> Originating agent-- 
(A) A licensed local recording agent authorized by Article 21.49-12 of the 
Insurance Code to complete an application for assistance on behalf of an 
applicant for submission to the Residential Property Insurance Market Assistance 
Program without being appointed to represent the insurer providing the coverage 
through the Residential Property Insurance Market Assistance Program; or 
(B) A salaried representative for an insurer whose plan of operation does not 
contemplate the use of local recording agents authorized by Article 21.49-12 of 
the Insurance Code to complete an application for insurance on behalf of an 
applicant for submission to the Residential Property Insurance Market Assistance 
Program without being appointed to represent the insurer providing the coverage 
through the Residential Property Insurance Market Assistance Program. 
<nl>(12)<ol> Residence premises--The residence premises shown on the 
declarations page of the insured's residential property insurance policy and 
which includes the one-family or two-family dwelling and other private 
structures and grounds. 
<nl>(13)<ol> Residential property insurance--Insurance against loss to real or 
tangible personal property at a fixed location provided in a homeowners policy, 
residential fire and allied lines policy, farm and ranch policy, or farm and 
ranch owners policy. 
<nl>(14)<ol> Residential risk--Dwelling, manufactured home, or other private 
structure located on the residence premises, and personal property contained 
therein. 
<nl>(15)<ol> Unaffiliated--Not an affiliate or not affiliated with another 
insurer or insurers as "affiliate" is defined in the Insurance Holding Company 
System Regulatory Act (Article 21.49-1 of the Insurance Code). 

sec.5.10004. Policy Forms and Types of Coverage.
(a) (No change.) 
(b) Forms. 
(1) The following forms may be used in Class 1 designated underserved areas in 
writing coverage through the MAP: 
(A)-(B) (No change.) 
<nl>(C)<ol> <nl>a farm and ranch owners policy form and endorsements filed by an 
individual insurer pursuant to Article 5.13-2 of the Insurance Code and approved 
by the Commissioner;<ol> 
<nl>(D)<ol> <nl>a farm and ranch policy form and endorsements filed by an 
individual insurer pursuant to Article 5.13-2 of the Insurance Code and approved 
by the Commissioner; and<ol> 
<nl>(E)<ol> [(C)] additional endorsements filed by an individual insurer 
pursuant to Article 5.35 of the Insurance Code and approved by the Commissioner. 
(2) The following forms may be used in Class 2 designated underserved areas in 
writing coverage through the MAP: 
(A) (No change.) 
<nl>(B)<ol> <nl>a farm and ranch owners policy form and endorsements filed by an 
individual insurer pursuant to Article 5.13-2 of the Insurance Code and approved 
by the Commissioner;<ol> 
<nl>(C)<ol> <nl>a farm and ranch policy form and endorsements filed by an 
individual insurer pursuant to Article 5.13-2 of the Insurance Code and approved 
by the Commissioner; and<ol> 
<nl>(D)<ol> [(B)] additional endorsements filed by an individual insurer 
pursuant to Article 5.35 of the Insurance Code and approved by the Commissioner. 
(c) Form rules. The rules governing the writing of the policies placed through 
the MAP <nl>, except farm and ranch policies and farm and ranch owners 
policies,<ol> shall be the same rules promulgated <nl>in the Texas Personal 
Lines Manual for each type of policy form<ol> by the Commissioner of Insurance 
<nl>pursuant to Articles 5.35 and 5.35-3 of the Insurance Code <ol> [in the 
Texas Personal Lines Manual for each such type of policy form]. <nl>Farm and 
ranch policies and farm and ranch owners policies shall be governed by the rules 
filed by individual insurers and approved by the Commissioner pursuant to 
Article 5.13-2 of the Insurance Code.<ol>
(d) Types of coverage. 
(1) (No change.) 
(2) The types of coverage that may be provided in Class 1 designated underserved 
areas are: 
(A)-(E) (No change.) 
(F) any other coverage available under policy forms and endorsements promulgated 
pursuant to Articles 5.35 or 5.35-3 of the Insurance Code or filed by an 
individual insurer pursuant to Article 5.35 and approved by the Commissioner 
<nl> or filed by an individual insurer pursuant to Article 5.13-2 for the 
purpose of providing farm and ranch or farm and ranch owners coverage and 
approved by the Commissioner<ol>. 
(3) The types of coverage that may be provided in Class 2 designated underserved 
areas are: 
(A)-(D) (No change.) 
(E) any other coverage available under policy forms and endorsements promulgated 
pursuant to Article 5.35 of the Insurance Code or filed by an individual insurer 
pursuant to Article 5.35 and approved by the Commissioner <nl> or filed by an 
individual insurer pursuant to Article 5.13-2 for the purpose of providing farm 
and ranch or farm and ranch owners coverage and approved by the 
Commissioner<ol>. 

sec.5.10007. Participating Insurers.
(a) (No change.) 
(b) Voluntary participation. 
(1) (No change.) 
(2) An insurer may use any [of the] criteria [transferred] from the MAP 
application [to the electronic bulletin board] to select applications for 
review. 
(3)-(4) (No change.) 
(c) (No change.) 

sec.5.10008. Participating Agents. 
(a)-(c) (No change.) 
(d) Agent commissions. 
(1) Originating agent's commission. 
(A)-(C) (No change.) 
(D) Within five working days after the issuance date of the insurance policy 
issued through the MAP, the insurer shall notify the Department <nl> by mail or 
facsimile transmission<ol> [via the electronic database] and the originating 
agent in writing or via electronic means that the insurance policy was issued. 
The notice shall include the insurance policy number and the name, address, 
telephone number, and fax number of the issuing agent. 
(E) (No change.) 
(2) (No change.) 

sec.5.10009. Operations. 
(a) (No change.) 
(b) Application review. <nl>The Department's MAP Division shall perform the 
application review and referral as specified in this subsection and subsection 
(c) of this section.<ol> 
(1) <nl>Preliminary<ol> [After preliminary] processing <nl>shall include<ol> [, 
including] review <nl> of the application<ol> for signatures of the applicant 
and originating agent<nl>,<ol> [and] logging in of names and addresses of 
applicant and originating agent, <nl>and notification of<ol> [the Department's 
Property and Casualty Intake Unit shall forward all MAP applications to the 
Department's MAP Division contracting entity for further processing as specified 
in this subsection and subsection (c) of this section. The Property and Casualty 
Intake Unit shall notify] the originating agent in writing or via electronic 
means of the receipt of the application. 
(2) Applications, including the information on the residential risks proposed to 
be insured, <nl>shall<ol> [will] be verified by the <nl>Department's MAP 
Division<ol> [contracting entity] for compliance with the requirements specified 
in this section and in sec.5.10006 of this plan of operation (also sec.5.10006 
of this title, relating to Eligibility for Referral). 
(3) (No change.) 
(c) Referral of applications. 
(1) Information from eligible MAP applications as specified in paragraph (2) of 
this subsection shall be <nl>faxed by the Department's MAP Division<ol> [placed 
on an electronic bulletin board accessible ] to all participating insurers for 
selection for purposes of issuing a quote. 
(A) If a policy has not been issued within 90 days from the date the application 
is entered on the <nl>Department's MAP application data base,<ol> the [bulletin 
board] <nl>Department's MAP Division <ol> [contracting entity] shall notify the 
originating agent in writing or via electronic means. 
(B) The MAP application shall remain as an active MAP application [on the 
electronic bulletin board] available for selection and quoting by an insurer 
until a policy is issued but for no longer than one year from the date the 
application <nl>was either<ol> [is] entered on the electronic bulletin board 
<nl>or entered on the MAP application database <ol>. 
(C) If a policy has not been issued within one year from the date the 
application is entered on the <nl>MAP application database<ol> [bulletin board] 
<nl>and faxed to participating insurers<ol>, the application shall be 
<nl>considered inactive<ol> [removed from the system], and the <nl>Department's 
MAP Division<ol> [contracting entity] shall notify the applicant in writing and 
the originating agent in writing or via electronic means. 
(2) The information provided to participating insurers [on the electronic 
bulletin board] shall include the following:
(A)-(G) (No change.) 
[(3) The contracting entity shall return application packets to the Department's 
MAP Division upon completion of entering application information on the 
electronic bulletin board.] 
(d) Insurers' processing of selected applications. 
(1) Application review and property inspection. 
(A) An insurer may select MAP applications for review based on criteria 
contained on the <nl>application<ol> [electronic bulletin board]. 
(B) (No change.) 
(2) Determination of whether to issue premium quote.
(A) (No change.) 
(B) If the insurer, however, has not quoted or refused to quote by the 30th day 
after selecting an application, the insurer shall be considered to have 
requested additional time and shall have an additional 15 days to quote or to 
refuse to quote. Within 45 days after selecting an application, the insurer 
shall <nl>notify the Department's MAP Division by mail or facsimile 
transmission<ol> [enter into the electronic database] that the insurer has 
quoted or has refused to quote. 
(C) (No change.) 
(3) Issuance of premium quote. Insurers shall issue premium quotes in accordance 
with the following provisions: 
(A) An insurer shall send its quote directly to the MAP applicant and 
simultaneously report the required information as specified in subparagraph (C) 
of this paragraph to the Department <nl>by mail or facsimile transmission <ol> 
[via the electronic database]. 
(B) An insurer's quote shall be valid for at least 30 days after the date the 
quote is issued. Within 35 days after issuance of the quote, the insurer shall 
<nl>notify the Department's MAP Division by mail or facsimile transmission<ol> 
[enter into the electronic database] that the quote has been accepted or 
rejected by the applicant. If an applicant has not affirmatively rejected the 
quote by the thirty-first day after the quote is issued, the insurer shall 
<nl>notify the Department's MAP Division by mail or facsimile transmission<ol> 
[enter into the electronic database] that the quote has been rejected. 
(C) (No change.) 
(4) Notification of issuance of policy. Within five business days after the 
issuance date of the insurance policy, the insurer shall notify the Department 
<nl>by mail or facsimile transmission<ol> [via the electronic database] and the 
originating agent in writing or via electronic means that the insurance policy 
was issued. The notification shall include the policy number and the name, 
address, telephone number, and fax number of the issuing agent. 
(5) <nl>Inactive application<ol> [Removal from bulletin board]. An application 
shall be <nl>considered inactive<ol> [removed from the electronic bulletin 
board] upon acceptance of a quote by the applicant. 
(e) (No change.) 
(f) Confidentiality of documents. Disclosure of information collected, 
assembled, or maintained by the Department in operating the MAP is governed by 
the Texas Open Records Act (Texas Government Code Chapter 552); Article 21.49-12 
of the Insurance Code; and other laws, either constitutional, statutory, or 
judicial decision, which govern the disclosure of specific types of information. 
[All confidentiality and disclosure requirements that apply to the Department 
shall apply to the Department's contracting entity.
(1) (No change.) 
(2) Applicant's authorization. 
(A) Pursuant to the Commissioner's authority in Article 21.49-12 sec.2(a) of the 
Insurance Code to promulgate this plan of operation and the Commissioner's 
rulemaking authority in Article 21.49-12 sec.8 of the Insurance Code to 
promulgate rules appropriate to accomplish the purposes of the MAP, the 
Department upon authorization by the applicant shall forward, on the applicant's 
behalf, copies of the completed application form for the property proposed to be 
insured, and, if applicable, declination letter or letters or letter or letters 
of non-eligibility, and cancellation or non-renewal notice to [the Department's 
contracting entity for the sole purpose of placement of application information 
on the electronic bulletin board for use by] prospective insurers <nl>for the 
sole purpose of<ol> [in] selecting risks for review for the purpose of writing 
residential property insurance. 
(B) The applicant's authorization as specified in subparagraph (A) of this 
paragraph shall be provided by the applicant's signing the MAP application form 
which shall contain the Applicant's Authorization. The Applicant's Authorization 
shall read as follows: "I hereby authorize the Texas Department of Insurance to 
forward, on my behalf, copies of my completed application form for the property 
proposed to be insured, and, if applicable, declination letter(s) or letter(s) 
of non-eligibility, and cancellation or non-renewal notice to [the Department's 
contracting entity for the sole purpose of placement of application information 
on the electronic bulletin board for use by] prospective insurers <nl>for the 
sole purpose of<ol> [in] selecting risks for review for the purpose of writing 
residential property insurance." 
(C) If the applicant does not sign the application form thereby authorizing the 
Department to forward copies of the applicant's completed application form and 
documents as specified in subparagraph (A) of this paragraph, the application 
shall not be forwarded to [the Department's contracting entity for placement on 
the electronic bulletin board to be accessed by] prospective insurers and shall 
be returned to the originating agent. 
(g)-(h) (No change.) 

sec.5.10011. Criteria and Procedures for Mandatory Participation by Insurers. 
(a) (No change.) 
(b) Implementation of mandatory MAP on Commissioner's own motion. 
(1) (No change.) 
(2) The Commissioner may, after notice and hearing, implement mandatory 
participation by insurers in the MAP if any of the circumstances specified in 
subparagraph (A) or subparagraph (B) of this paragraph occur. An application 
shall not be counted for purposes of subparagraphs (A) and
(B) of this paragraph unless the application has been either <nl>active<ol> [on 
the electronic bulletin board] for 90 days or a policy has been issued, 
whichever occurs first. 
(A)-(B) (No change.) 
(c) Executive Committee's determination of the need to recommend implementation 
of mandatory MAP. 
(1)-(2) (No change.) 
(3) Procedures for consideration of recommendation. 
(A) (No change.) 
(B) Consideration shall occur at the next meeting of the Executive Committee if 
the Subcommittee on Data Collection determines that any of the circumstances 
specified in clauses (i) or (ii) or (iii) of this subparagraph has occurred. An 
application shall not be counted for purposes of clauses (i) and (ii) of this 
subparagraph unless the application has been either <nl> active<ol> [on the 
electronic bulletin board] for 90 days or a policy has been issued, whichever 
occurs first. 
(i)-(iii) (No change.) 
(4)-(8) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805510
Caroline Scott
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 463-6327

28 TAC sec.5.10016
The Texas Department of Insurance proposes amendments to sec.5.10016, concerning 
the application form (Form TMAP-10, Texas MAP Application) to be used in the 
Residential Property Insurance Market Assistance Program (MAP) pursuant to the 
Insurance Code, Article 21.49-12. Article 21.49-12 was enacted by the Texas 
Legislature in 1995 (Acts 1995, 74th Leg. p. 3008, ch. 415, sec.5, eff. Aug. 28, 
1995) to require the Commissioner to establish a voluntary market assistance 
program to assist consumers in obtaining residential property insurance 
coverage, defined in Article 21.49-12, sec.1(a) as homeowners, residential fire 
and allied lines, and farm and ranch owners coverage, in underserved areas that 
are determined and designated by the Commissioner under separate rule (28 TAC 
sec.5.3700). The purpose of the MAP is to provide a fair, efficient, and 
economical voluntary mechanism to assist Texas consumers in obtaining 
residential property insurance in designated underserved areas of the state, 
including rural areas. Form TMAP-10, which is adopted by reference in 
sec.5.10016, is used in applying for homeowners, dwelling, farm and ranch 
owners, and farm and ranch coverage. The purposed amendments to Form TMAP-10 
(Texas MAP Application) are necessary (i) to amend the applicant's authorization 
because a contracting entity is no longer processing the MAP applications and 
(ii) to update the form to add an entry blank for indicating the Public 
Protection Classification for the risk to be insured. These amendments are 
recommended for adoption by the MAP Executive Committee pursuant to Article 
21.49-12, sec.2(a) of the Insurance Code and sec.5.10012 of the plan of 
operation (also sec.5.10012 of this title, relating to Amendments to the MAP 
Plan of Operation). The amendments are proposed to be effective July 1, 1998. No 
amendments are proposed to Form TMAP-11, Letter of Non-eligibility for 
Residential Property Insurance. 
Applicant's Authorization. Article 21.49-12, sec.2(b) of the Insurance Code 
requires the use of applications for assistance to apply for coverage through 
the MAP. The current Form TMAP-10 contains an applicant's authorization that 
authorizes the Department to forward, on the applicant's behalf, copies of the 
completed application form, and if applicable, declination letter(s) or 
letter(s) of non-eligibility, and cancellation or non-renewal notice to the 
Department's contracting entity for the sole purpose of placement of application 
information on the electronic bulletin board to be accessed by prospective 
insurers participating in the MAP for the sole purpose of reviewing for quote 
and writing residential property insurance for the applicant. The Department 
proposes to amend Form TMAP-10 to delete the reference to forwarding of the 
application form and other pertinent documents to the Department's contracting 
entity because MAP applications are now being processed by the Department in 
lieu of the contracting entity. Under the proposed new procedures (see proposed 
28 TAC sec.5.10009 also published in this issue), the Department's MAP Division 
will forward copies of the completed application form directly to insurers. The 
applicant's authorization on the application form continues, however, to be 
necessary because of the confidentiality requirements in Article 21.49-12, 
sec.5, which provide that the Department shall maintain as confidential all 
application files and related documents received under Article 21.49-12, except 
to certain specified persons and entities, including the originating and issuing 
agents, the applicant for their own file, or an insurer that agrees to insure 
the applicant. This authorization and any amendments to this authorization are 
proposed and promulgated pursuant to the Commissioner's rulemaking authority in 
Article 21.49-12, sec.8 to promulgate rules in addition to the plan of operation 
that are appropriate to accomplish the purposes of Article 21.49-12. 
Public Protection Classifications. The Commissioner under Commissioner's Order 
No. 96-1377 (November 25, 1996) repealed the existing Texas Key Rate Schedule 
used for grading public fire protection of cities and towns in Texas and 
replaced that schedule with a new Fire Suppression Rating Schedule to be used 
for determining and grading public fire protection of cities, towns, and 
districts in Texas. The use of the Fire Suppression Rating Schedule to grade 
public fire protection results in the establishment of Public Protection 
Classifications (PPCs) for cities, towns and districts to reflect the 
appropriate classification of the public fire protection afforded in the 
specific city, town or district. On August 21, 1997, the Commissioner adopted in 
Commissioner's Order No. 97-0840 the new residential benchmark rates which 
incorporated the use of the new Fire Suppression Rating Schedule and Public 
Protection Classifications as part of the new rating system for homeowners and 
dwelling insurance. The effective date of the new rating schedule and the 
recently adopted residential property benchmark rates was February 1, 1998. 
Pursuant to Article 21.49-12, sec.2(b)(3), each insurer that writes a policy 
through the MAP has the right to individually evaluate the risk and apply the 
rates in accordance with the provisions of the Insurance Code applicable to each 
insurer. Insurers that write homeowners and dwelling insurance policies through 
the MAP must use the PPCs adopted by the Commissioner unless an insurer files a 
different classification system that is approved by the Commissioner pursuant to 
Article 5.101, sec.3(k)-(m) of the Insurance Code. The Legislature enacted S.B. 
1499 (Acts 1997, 75th Leg., p. 5030, ch. 1330, sec.1, eff. Sept. 1, 1997) to 
provide that effective January 1, 1998, farm and ranch and farm and ranch owners 
lines of insurance are no longer regulated as personal lines coverage pursuant 
to Articles 5.35 and 5.101 of the Insurance Code, but rather are to be regulated 
as commercial property insurance under Article 5.13-2 of the Insurance Code. 
Therefore, an insurer that writes farm and ranch owners and farm and ranch 
insurance policies in Texas must file applicable rates and rating plans pursuant 
to Article 5.13-2, sec.5 of the Insurance Code. The rates and rating plans must 
include a rating schedule to recognize the grading of public fire protection. 
Insurers that write farm and ranch owners and farm and ranch insurance policies 
through the MAP may use the PPCs approved by the Commissioner for use with 
commercial risks or use the individual insurer's own classification system filed 
pursuant to Article 5.13-2, sec.5 and which is not disapproved pursuant to 
Article 5.13-2, sec.7. The Department proposes amending Form TMAP-10, Texas MAP 
Application, to update the form to implement the use of the Public Protection 
Classifications to add an entry blank for indicating the PPC for the risk to be 
insured. Because of the capping of premiums for homeowners and dwelling 
insurance for the first two years (pursuant to Commissioner's Order No. 97-0840, 
effective February 1, 1998) and farm and ranch owners and farm and ranch 
insurance (insurers may file to use the existing or advisory form and ranch loss 
costs which include a capping of premiums for the first two years), it is 
necessary to continue to provide an entry blank on the MAP application form for 
indicating the key rate as well as the PPC. 
David Durden, deputy commissioner of the automobile and homeowner's division of 
the property and casualty program, has determined that for each year of the 
first five years the proposed amendments are in effect, any fiscal implications 
to state government are the result of the legislative enactment of Article 
21.49-12 of the Insurance Code, which mandates the establishment and operation 
of the MAP and the use of applications for assistance to apply for coverage 
through the MAP, and are not as a result of the adoption, enforcement, or 
administration of the proposed amendments. Mr. Durden has determined that for 
each year of the first five years the proposed amendments are in effect, there 
will be no fiscal implications to units of local government as a result of 
enforcing or administering the proposed amendments, and there will be no effect 
on local employment or local economy. 
Mr. Durden has also determined that for each year of the first five years the 
proposed amendments are in effect, the public benefit anticipated as a result of 
administering the proposed amendments is the availability of an updated 
application form necessary to implement the Residential Property Insurance 
Market Assistance Program, which is mandated by Article 21.49-12 of the 
Insurance Code. The proposed amendments to Form TMAP-10 will provide appropriate 
authorization necessary to the Department to forward the MAP application and 
pertinent attachments (i.e., declination letter(s) or letter(s) of non-
eligibility, and cancellation or non-renewal notice) directly to prospective 
insurers for the sole purpose of selecting risks for review for the purpose of 
writing property insurance for the applicant in lieu of the current 
authorization to the Department to forward the MAP application and pertinent 
attachments to the Department's contracting entity. The proposed changes also 
amend the application form to provide a space for indicating the PPC for the 
risk to be insured to enable the risk to be properly rated. Because Article 
21.49-12, sec.2(b) of the Insurance Code requires the use of applications for 
assistance to apply for coverage through the MAP and because of the statutory 
intent that the application be updated as necessary to reflect statutory and 
regulatory changes, any possible economic costs to insurers, local recording 
agents, or salaried representatives complying with the proposed amendments for 
each year of the first five years the proposed amendments will be in effect are 
the result of the legislative enactment of Article 21.49-12 of the Insurance 
Code and are not as a result of the adoption, enforcement, or administration of 
the proposed amendments.
Mr. Durden has determined that any possible economic costs to any participating 
insurer, local recording agent, or salaried representative qualifying as a small 
business under the Government Code sec.2006.001 that comply with the amendments 
for each year of the first five years the proposed amendments will be in effect 
are the result of the legislative enactment of Article 21.49-12 of the Insurance 
Code, which requires the use of applications for assistance to apply for 
coverage through the MAP with the statutory intent that the application be 
updated as necessary to reflect statutory and regulatory changes, and are not as 
a result of the adoption, enforcement, or administration of the proposed 
amendments. These costs may not be waived by the Department for any 
participating insurer, local recording agent, or salaried representative 
qualifying as a small business under the Government Code sec.2006.001 that 
comply with the amendments for each year of the first five years the proposed 
amendments will be in effect because Article 21.49-12, sec.2(b) of the Insurance 
Code requires the use of applications for assistance to apply for coverage 
through the MAP.
Comments on the proposed amendments must be submitted within 30 days after 
publication of the proposed amendments in the Texas Register to the Office of 
the Chief Clerk, Texas Department of Insurance, P. O. Box 149104, MC #113-2A, 
Austin, Texas, 78714-9104. An additional copy of the comment is to be submitted 
to David Durden, Deputy Commissioner, Property and Casualty Division, Texas 
Department of Insurance, P. O. Box 149104, MC #104-5A, Austin, Texas 78714-9104. 
Any request for a public hearing on this proposal should be submitted separately 
to the Office of the Chief Clerk. 
The amendment is proposed pursuant to the Insurance Code, Articles 21.49-12 and 
1.03A; and in accordance with the Government Code sec.sec.2001.004-2001.038. 
Article 21.49-12, sec.1(a) provides that residential property insurance shall be 
provided through the MAP under a homeowners policy, a residential fire and 
allied lines policy, and a farm and ranch policy. Article 21.49-12, sec.2(b)(1)-
(2) requires the use of applications for assistance to apply for coverage 
through the MAP. Article 21.49-12, sec.2(b)(2) requires that each MAP 
application must be accompanied by a copy of a current nonrenewal or 
cancellation notice and a current declination letter from at least one other 
insurer writing the coverage sought and that applicants not having previous 
residential property insurance coverage must provide copies of current 
declination letters from at least two unaffiliated insurers writing the coverage 
sought. Article 21.49-12, sec.8 authorizes the Commissioner to adopt rules in 
addition to the plan of operation that are appropriate to accomplish the 
purposes of Article 21.49-12. 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. 
The following statutes are affected by this proposal: Insurance Code, Article 
21.49-12. 

sec.5.10016. Forms Promulgated for Use in the Residential Property Insurance 
Market Assistance Program. 
The Commissioner of Insurance adopts by reference the forms specified in this 
section for use in the Residential Property Insurance Market Assistance Program, 
which is operated pursuant to Article 21.49-12 of the Insurance Code. Specimen 
copies of these forms are available from the Texas Department of Insurance, MAP 
Division, MC #104-MA, 333 Guadalupe Street, P. O. Box 149104, Austin, Texas 
78714-9104. These forms are: 
(1) Form TMAP-10--Texas MAP Application. <nl>As Amended<ol> Effective <nl>July 
1, 1998<ol> [September 1, 1996]. 
(2) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805509
Caroline Scott
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 463-6327

CHAPTER 34. State Fire Marshall
SUBCHAPTER H. Storage and Sale of Fireworks
28 TAC sec.34.831
The Texas Department of Insurance proposes new section sec.34.831, concerning 
the establishment of an advisory committee for fireworks regulation. The 
advisory committee is appointed pursuant to the Insurance Code, Article 5.43-4, 
to periodically review rules relating to the program of fireworks regulation 
under the article, to recommend changes in the rules to the commissioner, and to 
develop rules based on proposed changes received from the commissioner. New 
sec.34.831 is necessary to implement Article 5.43-4, Sec. 5B, amended by the 
75th Legislature in 1997. New sec.34.831 sets out the composition and 
requirements of the advisory committee to periodically review rules relating to 
the program of fireworks regulation and recommend changes in the rules to the 
commissioner. The new section is required by Article 5.43-4, Sec. 5B, which 
requires the appointment of the advisory committee, and the Government Code, 
sec.sec.2110.005 and 2110.008, which govern state agency advisory committees and 
require a state agency that is advised by an advisory committee to specify by 
rule the advisory committee's purpose, duties, reporting requirements and 
duration. 
G. Mike Davis, State Fire Marshal, has determined that for each year of the 
first five years the proposed section is in effect, any fiscal implications to 
state government will be the result of the legislative enactment of the 
Insurance Code, Article 5.43-4, not the result of adoption and implementation of 
this section. There will be no fiscal implications for local government or small 
business as a result of enforcing or administering the new section, and no 
effect on the local economy or local employment. 
Mr. Davis also has determined that for each year of the first five years the 
proposed section is in effect, the anticipated public benefit from enforcing and 
administering the section is the submission of a report to the commissioner 
containing suggestions and necessary changes to Chapter 34, Subchapter H, of 
this title, regulating the sales, storage and use of fireworks, in order to 
enhance the safety of the citizens of Texas. On the basis of cost per hour of 
labor, there is no anticipated difference in cost of compliance between small 
and large businesses. No adverse impact on small business will result from 
enforcement or administration of the rule because it imposes no compliance costs 
on any person. Although participation on the advisory committee is voluntary, 
committee members who must travel to attend meetings will incur some costs. 
These costs will vary depending on how far the member must travel to attend 
meetings, what type of transportation is used, whether lodging is needed and 
what choice of lodging is made. The department will not reimburse these costs.
Comments on the proposal must be submitted in writing within 30 days after 
publication of the proposal in the Texas Register, to Caroline Scott, General 
Counsel & Chief Clerk, Texas Department of Insurance, P.O. Box 149104, Mail Code 
113-2A, Austin, Texas 78714-9104. An additional copy of the comments must be 
submitted to Mr. G. Mike Davis, State Fire Marshal, Texas Department of 
Insurance, P.O. Box 149221, Austin, Texas 78714-9221. Requests for a public 
hearing should be submitted separately to the Office of the Chief Clerk.
The new section is proposed pursuant to the Government Code, sec.sec.2001.004, 
2110.005 and 2110.008, and the Insurance Code, Articles 5.43-4 and 1.03A. The 
Government Code, sec.2110.005 requires a state agency that is advised by an 
advisory committee to adopt rules that state the purpose of the committee, and 
describe the committee's task and the manner in which the committee will report 
to the agency. Section 2110.008 requires a state agency that is advised by an 
advisory committee to establish by rule a date on which the committee will 
automatically be abolished. The Insurance Code, Article 5.43-4, directs the 
commissioner to establish an advisory committee to assist in the administration 
of Article 5.43-4. Article 1.03A provides that the commissioner may adopt rules 
and regulations to execute the duties and functions of the Texas Department of 
Insurance only as authorized by a statute. The Government Code, sec.2001.004, 
authorizes and requires each state agency to adopt rules of practice setting 
forth the nature and requirements of available procedures and to prescribe the 
procedures for adoption of rules by a state agency. 
The following statutes are affected by the proposed section: The Insurance Code, 
Article 5.43-4; The Government Code, sec.sec.2110.005 and 2110.008.

sec.34.831. Advisory Committee for Recommendation and Development of Rules. 
(a) Purpose and Scope. As required by the Government Code, sec.2110.005 and 
sec.2110.008, the purpose of this section is to set out the purpose of the 
advisory committee for the recommendation and development of rules, to define 
its tasks and the manner in which it will report to the department, to specify 
its membership, and to set its duration. The advisory committee is established 
pursuant to the Insurance Code, Article 5.43-4. 
(b) Purpose of the Advisory Committee. The purpose of the advisory committee is 
to assist the commissioner in the administration of Article 5.43-4. 
(c) Tasks. The advisory committee shall perform the tasks specified in 
paragraphs (1) - (3) of this subsection. 
(1) The advisory committee shall periodically review rules relating to the 
program of fireworks regulation. Following its review and evaluation of those 
rules, the advisory committee shall submit a report of its findings and 
recommendations to the commissioner. 
(2) The advisory committee shall review all proposed changes and additions to 
rules that relate to the administration of Article 5.43-4 submitted to it by the 
commissioner under the provisions of Article 5.43-4, sec.5B. The committee may, 
as it determines necessary, develop proposed rules for consideration by the 
commissioner. 
(3) The advisory committee shall perform other tasks as requested by the 
commissioner pursuant to the Insurance Code, Article 5.43-4.
(d) Reporting Requirements. After completing the development and recommendation 
of rules pursuant to Article 5.43-4, the advisory committee shall submit a 
report of its findings and recommendations to the commissioner no later than 
July 1 of each year. 
(e) Membership. Pursuant to the Insurance Code, Article 5.43-4, the advisory 
committee shall be composed of five members which are representatives from the 
fireworks industry. The commissioner shall replace any member who resigns from 
the advisory committee. 
(f) Duration. The advisory committee shall automatically terminate on December 
31, 1998, unless, before its termination, the commissioner extends its duration. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 16, 1998.
TRD-9805362
Caroline Scott
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 463-6327

PART II. Texas Workers' Compensation Commission
CHAPTER 166.Accident Prevention Services
28 TAC sec.166.4
The Texas Workers' Compensation Commission (the Commission) proposes an 
amendment to sec.166.4, concerning required accident prevention services. The 
amendment is proposed to clarify the requirements of subsection (c)(6) of the 
rule relating to the provision of written notification of claims experience and 
provision of a loss analysis to policyholders. 
Currently subsection (c)(6) provides that as part of a minimum accident 
prevention service program, policyholders must be provided written notification 
at least every 12 months of actual claims experience and must be provided a loss 
analysis if the policyholder meets the criteria of paragraphs (c)(2)(B) and (C). 
The use of the word "and" between paragraphs (c)(2)(B) and (C) implies 
simultaneous compliance with the requirements of all four subparagraphs. These 
criteria overlap causing confusion as to which policyholders must receive a loss 
analysis. 
It has been noted during insurance company inspections that some carriers are 
interpreting subsection (c)(6) to mean that the premium criteria under 
subsection(c)(2)(B) and (C) should be used to determine which policyholders must 
receive a written notification of claims experience as well as which 
policyholders must receive a loss analysis. This is not the intention of the 
subsection. All policyholders are to receive a written notice of claims 
experience at least every 12 months. In addition, there has been 
misinterpretation regarding whether the "every 12 months" applied to both the 
notification of actual claims experience and the loss analysis. 
Current subsection (c)(6) is also difficult to read because it requires the 
reader to reference another subsection of the rule to determine which 
policyholders must be provided with a loss analysis. The proposed amendment will 
eliminate the need for the reader to cross-reference subsection (c)(2)(B) and 
(c)(2)(C) of this rule and will provide a clearer description of which 
policyholders must be provided with a written loss analysis at least once each 
12 months. 
The proposed amendments would delete from subsection (c)(6) the requirement to 
provide a loss analysis to certain policyholders and place that requirement in a 
separate subsection which would be added as new subsection (c)(7). Current 
subsections (c)(7) and (c)(8) would be renumbered accordingly. This change would 
separate the requirement for provision of actual claims experience from the 
requirement for provision of a loss analysis making it clearer which 
policyholders are to be provided which information and how often the information 
was required to be provided. New subsection (c)(7) requires written 
documentation of loss analysis to be provided only to policyholders with a 
premium of $25,000 or more, or a premium between $5,000 and $24,999, inclusive, 
and a loss ratio of greater than $250%. 
Proposed subsection (c)(2)(C)(ii) has been revised to add the word "inclusive" 
after the words "between $5,000 and $24,999" to make it clear that the limits 
mentioned are included. Therefore, a policyholder with a premium of $5,000 is 
entitled to a mandatory on-site visit every 12 months as is a policyholder with 
a premium of $24,999. This is a clarification of the current rule, not a change. 
The Texas Register published text shows words proposed to be added to or deleted 
from the current text, and should be read to determine all proposed changes. 
Janet Chamness, Chief of Budget, has determined that for the first five-year 
period the proposed rule as amended is in effect there will be fiscal 
implications for state or local governments as a result of enforcing or 
administering the rule. 
Local government and state government as a covered regulated entity will be 
impacted in the same manner as described later in this preamble for persons 
required to comply with the rule as proposed. 
The Compliance and Practices division of the Commission has received violation 
referrals due to some carriers' misinterpretation of subsection (c)(6) in a way 
that resulted in the carriers' failure to provide written notice of claims 
experience to all policyholders every 12 months and/or failure to provide loss 
analyses to the specified policyholders every 12 months. The proposed change is 
expected to reduce the cost to the Commission by reducing the number of notices 
of alleged violations processed and sent. There may be a loss of revenue to the 
state if the amount of administrative penalties assessed is reduced. An analysis 
of the referrals to the Compliance and Practices division by the Accident 
Preventions Services division revealed that 18% of these referrals for the 
period September 1996 to August 1997 were for non-compliance with 
subsection(c)(6). The administrative penalties collected for violations of 
subsection(c)(6) have totaled $17,511 to date for referrals made since September 
1996. 
Ms. Chamness, Chief of Budget, has determined that for the first five-year 
period the proposed rule is in effect the public benefit anticipated as a result 
of enforcing the rule will be clarification of which policyholders must be 
provided a loss analysis and which policyholders must be provided written 
notification of actual claims experience; simplification of the wording of the 
rule which will make it easier to understand; and increased compliance with the 
rule. 
Health care providers are not affected by the rule. There will be no anticipated 
increases in costs to persons who are required to comply with the rule as 
proposed because no additional services are required to be provided. Those 
carriers who have been interpreting the rule as requiring the provision of 
accident prevention services to all policy holders may realize a reduction in 
costs. There may be a reduction of administrative penalties imposed for 
violation of subsection (c)(6) and a reduction in the costs for insurance 
carriers as a result of fewer enforcement proceedings. 
The proposed amendment will reduce the administrative time necessary for 
insurance carriers to provide required loss analyses to policyholders. Some 
carriers have interpreted the current rule to require provision of loss analyses 
to practically all policyholders. The proposed amendment clarifies and limits 
the policyholders that must be provided a loss analysis to policyholders with 
high loss ratios who fall within specific premium parameters. Policyholders with 
premiums of less than $5,000 will no longer meet the criteria for required 
provision of a loss analysis. This will reduce the carriers' administrative time 
and costs allocated for providing loss analyses.
There will be no adverse economic impact on small businesses because there 
should be no adverse economic impact on any persons required to comply with the 
rule as proposed. There will be no greater cost of compliance for small 
businesses as compared to large businesses. 
Comments on the proposal or requests for public hearing must be submitted to Sue 
Cutler by 5:00 p.m. on June 1, 1998 at the Office of General Counsel, Mailstop 
#4-D, Texas Workers' Compensation Commission, Southfield Building, 4000 South 
IH-35, Austin, Texas 78704-7491. The rule as adopted may be revised from the 
rule as proposed. 
The amendment is proposed under the Texas Labor Code sec.402.061, which 
authorizes the commission to adopt rules necessary to administer the Act; the 
Texas Labor Code, sec.411.061, which requires an insurance company to provide 
accident prevention services; the Texas Labor Code, sec.411.062, which mandates 
the commission to establish qualifications for field safety representatives; the 
Texas Labor Code, sec.sec.411.063 - 411.068, which require an insurance company 
to provide qualified accident prevention personnel and to provide notice of the 
accident prevention services, set certain specifications for the program, 
require an insurance company to annually submit information to the commission, 
require biennial inspections by the division, and provide for an administrative 
penalty for violation of the requirements. 
This proposed amendment to sec.166.4(c)(6) affects the following statutes: Texas 
Labor Code, sec.401.011, General Definitions; Texas Labor Code, sec.402.061, 
which authorizes the commission to adopt rules necessary to administer the Act; 
the Texas Labor Code, sec.411.061, which requires an insurance company to 
provide accident prevention services; the Texas Labor Code, sec.411.062, which 
mandates the commission to establish qualifications for field safety 
representatives; the Texas Labor Code, sec.sec.411.063-411.068, which require an 
insurance company to provide qualified accident prevention personnel and to 
provide notice of the accident prevention services, set certain specifications 
for the program, require an insurance company to annually submit information to 
the commission, require biennial inspections by the division, and provide for an 
administrative penalty for violation of the requirements. 

sec.166.4.Required Accident Prevention Services.
(a)-(b) (No change.) 
(c) An accident prevention service program as required by the Texas Labor Code, 
sec.411.061, shall provide, at a minimum: 
(1) (No change.) 
(2) service in accordance with the following requirements:
(A)-(B) (No change.) 
(C) a mandatory on-site visit on a periodic basis and at least every 12 months 
to each policyholder with: 
(i) (No change.) 
(ii) a premium between $5,000 and $24,999<nl>, inclusive, <ol> and a loss ratio 
greater than 250%; 
(D)-(E) (No change.) 
(3)-(5) (No change.) 
(6) written notification at least every 12 months to <nl> each policyholder<ol> 
[policyholders] of actual claims experience [and, if the policyholder meets the 
criteria of paragraph (2)(B) and (C) of this subsection, a loss analysis]; 
<nl>(7)<ol> <nl>written documentation of loss analysis at least every 12 months 
to each policyholder with:<ol> 
<nl>(A)<ol> <nl> a premium of $25,000 or more; or <ol>
<nl>(B)<ol> <nl>a premium between $5,000 and $24,999, inclusive, and a loss 
ratio of greater than 250%; <ol>
<nl>(8)<ol> [(7)] evidence that each workers' compensation insurance policy 
delivered or issued for delivery in Texas contains the following notice on the 
declarations page or on the front of the policy in at least ten-point bold type: 
"(Name of company) is required by law to provide its policyholders with certain 
accident prevention services as required by the Texas Labor Code, sec.411.066, 
at no additional charge. If you would like more information call (insurance 
company's loss control division or provider's telephone number). If you have any 
questions about this requirement, call the Division of Workers' Health and 
Safety, Texas Workers' Compensation Commission at 1-800-452-9595."; and 
<nl>(9)<ol> [(8)] annual reports as required by sec.166.3 of this title 
(relating to Annual Report to the Commission).
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 20, 1998.
TRD-9805474
Susan M. Cory
General Counsel
Texas Workers' Compensation Commission
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 440-3972

TITLE 30. ENVIRONMENTAL QUALITY
PART I. Texas Natural Resource Conservation Commission
CHAPTER 333. Brownfields Initatives 
SUBCHAPTER B.Innocent Owner/Operator Certification
30 TAC sec.sec.333.31- 333.43
The Texas Natural Resource Conservation Commission (commission) proposes new 
sec.sec.333.31-333.43, concerning the certification of persons as innocent 
owner/operators who are immune from liability for contamination on their 
property from a source not located on or at the property. 
EXPLANATION OF PROPOSED RULES
The commission is proposing the new rules for the Innocent Owner/Operator 
Program (IOP) created by new Health & Safety Code, Chapter 361, Subchapter V 
(IOP statute), passed by the 75th Texas Legislature. The new statute, which took 
effect on September 1, 1997, was created to provide an immunity from liability 
and a certification process for owners/operators of property that has become 
contaminated as a result of a release or migration of contaminants from an off-
site source. To qualify for the immunity from liability, innocent 
owner/operators must grant reasonable access for purposes of investigation or 
remediation to persons designated by the agency. An agreement for reasonable 
access may provide for, among other things, reasonable compensation for access 
to the property. The IOP, and this reference to reasonable compensation, is not 
intended to address such issues as permanent damages including damages due to 
remaining contamination after remediation, damages incurred due to deed notice 
or recordation, or any other damage caused by the contamination.
To be eligible for certification as an innocent owner/operator, a person must 
apply to the agency. If the agency determines that the person is an innocent 
owner/operator, the agency will issue a certificate acknowledging such. The 
certificate evidences the person's immunity from liability under the Texas Water 
Code and the Health & Safety Code for investigation, monitoring, remediation, or 
corrective or other response action regarding the contamination from the off-
site source. Because the IOP statute took effect on September 1, the IOP is an 
operating program. The IOP application and draft certificate became available in 
September 1997. The commission is proposing these new rules to enhance the 
implementation of the IOP. 
Proposed new sec.333.31 states that the authority to issue, deny or revoke a 
certificate under the IOP is delegated by the commission to the executive 
director pursuant to Texas Water Code, sec.5.122. 
Proposed new sec.333.32 states that the requirements for the IOP are found in 
Subchapter B of this chapter and in the Texas Health and Safety Code, Chapter 
361, Subchapter V. The commission is also proposing to require two copies of all 
documents so that one copy may be on file in the agency's central records. 
Proposed new sec.333.33 contains terms and definitions for the IOP. Four 
definitions are proposed in this section to add clarity to the program. Those 
definitions are: "Innocent owner/operator certificate;" "Portion of a 
tract;""Site;" and "Source of release of contamination." 
Proposed new sec.333.34 sets forth the eligibility requirements for an Innocent 
Owner/Operator Certificate. Persons eligible for the IOP are innocent 
owners/operators under Texas Health and Safety Code, sec.361.751 and 
sec.361.752(b). Section 361.751 defines innocent owners/operators as owners or 
operators of property that has become contaminated as a result of a release or 
migration of contaminants from a source or sources not located on or at the 
property and who did not cause or contribute to the source or sources of the 
contamination. Section 361.752(b) provides eligibility for a person that 
acquired a portion of a tract on which the source of a release of contaminants 
is located from the person that caused the release, if the person acquiring the 
portion of the tract did not know or have reason to know of the contamination 
after appropriate inquiry consistent with good commercial or customary practice. 
Under the proposed new section, persons electing to participate in the IOP must 
submit an application and pay all agency costs associated with the review of the 
application and the issuance of an innocent owner/operator certificate. Persons 
are not required to be owners or operators of the site at the time they apply 
for a certificate; however, the executive director will not issue a certificate 
until proof of ownership or operation is provided. This will allow prospective 
owners/operators to participate in the IOP. 
Proposed new sec.333.35 contains the requirements for the application. All 
applications must be accompanied by a $1000 application fee. As noted earlier, 
the application form is currently available from the executive director. Along 
with the application form, applicants must submit general information concerning 
the owner/operator of the site, a site investigation report, a legal description 
of the site and the name of the site owner/operator, a statement affirming 
innocent owner/operator status, and other background information requested by 
the executive director. The proposed section sets forth criteria for the site 
investigation, notably information that demonstrates that the applicant is an 
innocent owner/operator. The proposed section also contains requirements for 
applications in the event that the sale, transfer, or change in 
ownership/operation will occur during the application review period or in the 
event a certified innocent owner/operator will be selling, transferring, or 
changing operations to another person who desires to be certified as an innocent 
owner/operator (i.e., a future transaction). Proposed sec.333.35 also provides 
that the applicant, by signing an application, agrees to pay all agency 
oversight costs and that the executive director has the authority to issue, 
deny, or revoke a certificate. Other procedural requirements proposed in the 
section note that any portion of the application fee not incurred or obligated 
will be refunded to the applicant, and that the executive director will give the 
applicant an opportunity to submit additional information in the case of an 
incomplete application. 
Proposed new sec.333.36 requires the applicant to notify adjacent property 
owners within 14 days of the submittal of the application. The notice will 
identify the applicant and will announce the availability of reports relating to 
the site. Adjacent property owners will have 14 days after receipt of the notice 
to submit additional information to assist the executive director in reviewing 
the application. Prior to reviewing any information supplied by adjacent owners, 
the executive director will notify the applicant and will give the applicant the 
opportunity to review the information. The applicant will be responsible for 
paying the costs incurred for agency review of the information unless the 
applicant notifies the executive director within 14 days of receiving the notice 
that it intends to withdraw the application. Proposed new sec.333.37 allows the 
applicant to withdraw the application by giving advance written notice to the 
executive director. Application fees for expenses not already incurred or 
obligated will be refunded. 
Proposed new sec.333.38 sets forth the standards for issuance of the Innocent 
Owner/Operator Certificate. Prior to issuance of the certificate, the applicant 
and any coapplicant must submit an affidavit affirming that they are innocent 
owners/operators. If the executive director determines that the applicant and/or 
coapplicants are innocent owners/operators, then the executive director will 
issue an innocent owner/operator certificate that acknowledges protection from 
liability provided by Texas Health and Safety Code, sec.361.752. The certificate 
shall specify the contaminants and environmental media for which the executive 
director has confirmed the person's innocent owner/operator status. If a 
prospective owner or operator applies for the certificate, the proposed rule 
provides that the certificate will not be issued until the person submits 
written evidence of ownership or operation. Under Texas Health and Safety Code, 
sec.361.753(g), the commission may condition the issuance of a certificate on 
the placement of restrictions on the use of the property to protect public 
health. If control measures are required, proposed sec.333.38(g) requires any 
control measures to be described in a restrictive covenant to be filed with the 
real property records in the county in which the site is located. The executive 
director will issue a certificate only after receiving proof that the 
restrictive covenant has been filed.
Proposed new sec.333.38 allows subsequent owners and operators to apply for a 
certificate in the event of a sale, transfer, or change in ownership or 
operation. The applicant and any co-applicant in such a case must demonstrate to 
the commission that the current certificate holder, since the issuance of the 
certificate, has not caused or contributed to the source of the off-site 
contamination and has not discharged or released to the site any contaminants 
covered by the certificate. This demonstration may be made either by affidavit 
from the current certificate holder or by other documentation if an affidavit 
cannot be obtained. The executive director, in its discretion, may require a 
site investigation report as part of this demonstration 
Proposed new sec.333.39 sets forth the procedures for the executive director's 
denial of a certificate. The executive director may deny an Innocent 
Owner/Operator Certificate if the application is not complete; the applicant 
does not provide sufficient information for the executive director to determine 
that the person is an innocent owner/operator; information obtained since the 
application was filed, including information submitted by adjacent property 
owners, demonstrates that the applicant is not an innocent owner/operator; or 
the owner/operator does not provide reasonable access. If a certificate is 
denied, the executive director will state the reasons for denial. 
Proposed new sec.333.40 provides for revocation of the innocent owner/operator 
certificate if the person holding the certificate: acquired the certificate by 
fraud, misrepresentation, or knowing failure to disclose material; does not 
properly maintain institutional and/or engineering controls where placement of 
such controls was required for certificate issuance; or does not pay all 
commission costs within 180 days of certificate issuance. Additionally, the 
certificate may be revoked if new information demonstrates that the certificate 
holder is not an innocent owner/operator. 
The certificate remains valid until revoked by the executive director pursuant 
to sec.333.40. In a case in which access is unreasonably denied by an innocent 
owner or operator, the certificate remains valid until revoked by decision of 
the Commission or a court which finds that the denial of access is unreasonable. 
This is consistent with internal agency procedures that have been developed to 
address access disputes, should they arise. The commission seeks comments on 
whether the rules should include a specific statement that the certificate 
remains valid until revoked 
Proposed new sec.333.41 discusses access. The certificate holder must grant 
reasonable access to persons designated by the executive director for purposes 
of investigation and remediation of the site as provided by Texas Health and 
Safety Code, sec.361.752(c). In addition, the proposed section clarifies that 
the commission, its employees, contractors, and agents may access the site. 
Proposed new sec.333.42 states that the attorney general will bring an action to 
recover the state's cost associated with reviewing the application if the person 
has not paid the amount due within 31 days after the date that the person 
receives notice that the costs are due. 
Proposed new sec.330.43 states that the executive director will annually 
calculate the agency's costs to administer the IOP and determine a rate for cost 
recovery. The commission will publish the notice of the rate in the Texas 
Register on an annual basis. 
FISCAL NOTE 
Stephen Minick, Strategic Planning and Appropriations Division, has determined 
that for the first five-year period the sections as proposed are in effect, 
there will be fiscal implications as a result of administration or enforcement 
of the sections. The effect on state government will be an increase in cost of 
approximately $245,000 in fiscal year 1998 and $204,000 in each of the fiscal 
years 1999-2002. These costs are preliminary estimates based on the anticipated 
number of applications and the average costs of processing for applications. It 
is the intent of the enabling legislation and these proposed rules that the 
application fees and cost recovery provisions provide for the recovery of the 
costs to the agency of the innocent owner/operator certification program. As 
these rules are implemented, these costs may increase or decrease based on the 
actual number of applications received and the projected demand for services. If 
all costs are recovered from applicants, revenues to the commission should 
increase to offset any costs incurred. Costs to local governments subject to 
these rules will be similar to those costs to any owner or operator of 
contaminated property seeking certification as an innocent owner/operator for 
immunity from certain liabilities. In addition, local governments, and 
particularly local taxing entities, will benefit generally from the effects of 
these proposed rules to the extent that waiver of liabilities will establish 
incentives for remediation and re-development of property and the eventual 
enhancement of local tax bases and economies. 
PUBLIC BENEFIT 
Mr. Minick has also determined that, for the first five years the sections as 
proposed are in effect, the public benefit anticipated as a result of 
enforcement of and compliance with the sections will be the more efficient and 
cost-effective investigation, assessment and remediation of contaminated 
properties, potential reductions in risks to the public of exposure to hazardous 
constituents, reductions in financial liabilities for property owners or 
facility operators who are not parties responsible for site contamination and 
potential enhancement to property values and local tax bases. The economic costs 
to any person to whom these rules are applicable will be limited to the actual, 
recoverable costs of the commission in the review and processing of applications 
for certificates. The costs to small businesses will be similar to those costs 
for any size business concern. These costs will vary with the size, location, 
and site-specific characteristics of each property and will not directly relate 
to the size of the business. There are no other economic costs anticipated for 
any person required to comply with these sections as proposed. 
DRAFT REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed rulemaking in light of the regulatory 
analysis requirements of Texas Government Code sec.2001.0225 and has determined 
that the rulemaking is not subject to sec.2001.0225 because: 1) it does not meet 
the definition of a "major environmental rule" as defined in the act, and 2) 
additionally, it does not meet any of the four applicability requirements listed 
in sec.2001.0225(a). While the proposed rule does seek to protect the 
environment and reduce risks to human health from environmental exposure through 
the possible placement of institutional and other control measures, the specific 
intent of the proposed rule is to exclude from liability owners and operators of 
property that has become contaminated from sources not located on the property. 
Any such placement will only be undertaken in conjunction with certification of 
immunity from liability issued at the request of the owner/operator. 
Accordingly, the rulemaking will not have a material, adverse effect on the 
economy. Moreover, the Innocent Owner/Operator Program (IOP) removes liability 
for innocent owners/operators, which in turn encourages and expedites real 
estate transactions, and may also lead to brownfields redevelopment, which 
likewise could provide economic benefits.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a Takings Impact Assessment for these rules pursuant 
to Texas Government Code Annotated sec.2007.043. The following is a summary of 
that Assessment. The specific purpose of the rules is to enhance the 
implementation of new Texas Health and Safety Code, Chapter 361, Subchapter V, 
which relates to the immunity from liability under the Texas Water Code and the 
Texas Health and Safety Code of innocent owners/operators. The rules will 
substantially advance this specific purpose by providing more detail for certain 
requirements and by establishing a clear administrative process for the 
preparation, submittal, and review of an Innocent Owner/Operator Application and 
issuance of an Innocent Owner/Operator Certificate. Promulgation and enforcement 
of these rules will not burden private real property which is the subject of the 
rules because the IOP will benefit owners/operators of private real property by 
providing immunity from liability under the Texas Water Code and the Texas 
Health and Safety Code for property contaminated by off-site sources. 
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
Title 31 Texas Administrative Code sec.505.11, relating to Actions and Rules 
Subject to the Coastal Management Program (CMP), requires the commission to 
evaluate proposed rules to ensure consistency with the CMP. The commission has 
reviewed this rulemaking for consistency with the Coastal Management Program 
(CMP) goals and policies. The rulemaking does not consist of actions or rules 
subject to the CMP identified in sec.505.11(a)(6) and sec.505.11(b)(2) for the 
Texas Natural Resource Conservation Commission; therefore, the proposed rule is 
not subject to the CMP. 
SUBMITTAL OF COMMENTS 
The commission will hold a public hearing. A public hearing on the proposal will 
be held on May 22, 1998 at 10:00 a.m in Building F, 2nd floor, Room 2210. The 
hearing is structured for the receipt of oral or written comments by interested 
persons. Individuals may present oral statements when called upon or by order of 
registration. Open discussion within the audience will not occur during the 
hearing; however, an agency staff member will be available to discuss the 
proposal 30 minutes prior to the hearing and answer questions before and after 
the hearing. 
Persons with disabilities who have special communication or other accommodation 
needs who are planning to attend the hearing should contact the agency at (512) 
239-4900. Requests should be made as far in advance as possible. 
Written comments may be mailed to Bettie Bell, Texas Natural Resource 
Conservation Commission, Pollution Cleanup Division, MC 203, P.O. Box 13087, 
Austin, Texas 78711-3087. All comments should reference Rules Tracking Log 
Number 97156-333-WS. Comments must be received by 5:00 p.m., on June 1, 1998. 
For further information, please contact Charles Epperson, Pollution Cleanup 
Division, (512) 239-2498, Patricia Hershey, Legal Division, (512) 239-0587, Lara 
Nehman, Legal Division, (512) 239-1121, or Clark Talkington, Waste Policy & 
Regulations Division, (512) 239-6731. 
STATUTORY AUTHORITY 
The new rules are proposed under the Texas Water Code, sec.5.103 and sec.26.011, 
which provide the commission with authority to adopt any rules necessary to 
carry out its powers, duties, and policies and to protect water quality in the 
state. The new rules are also proposed under the Texas Solid Waste Disposal Act, 
Texas Health and Safety Code, sec.361.017, and sec.361.024, which provide the 
commission the authority to regulate industrial solid waste and municipal 
hazardous wastes and all other powers necessary or convenient to carry out its 
responsibilities. The Texas Solid Waste Disposal Act, Texas Health and Safety 
Code, Subchapter V, sets forth statutory requirements specific to the immunity 
from liability of innocent owners and operators. 
The new rules affect Texas Health and Safety Code, Chapter 361. 

sec.333.31. Delegation. 
The authority to issue, deny or revoke a certificate under Chapter 361, 
Subchapter V, of the Texas Health and Safety Code is delegated by the commission 
to the executive director pursuant to Texas Water Code, Section 5.122. 

sec.333.32. Requirements. 
(a) The requirements of the innocent owner/operator certification are found in 
this Subchapter and in the Texas Health and Safety Code, Chapter 361, Subchapter 
V. 
(b) The applicant shall submit two copies of all documents, one of which will be 
filed in the agency central records.

sec.333.33. Definitions. 
The following words and terms, when used in this chapter, shall have the 
following meanings, unless the context clearly indicates otherwise. 
(1) Innocent owner/operator certificate - A certificate issued by the executive 
director or their designee which confirms that the person is an innocent 
owner/operator as defined in Texas Health and Safety Code, sec.361.751, or that 
the person is eligible for immunity under sec.361.752(b).
(2) Portion of the tract - A site which does not contain the source of the 
release of contamination but which is a subdivided section of a tract which 
contains the source of the release of contamination. 
(3) Site - The property as described in the legal description provided in the 
innocent owner/operator application. 
(4) Source of release of contamination - The property from which a release of 
contaminants originated. 

sec.333.34. Eligibility for Innocent Owner/operator Certificate. 
(a) The following persons are eligible to receive an innocent owner/operator 
certificate: 
(1) a person defined as an innocent owner/operator in the Texas Health and 
Safety Code, sec.361.751(2); and 
(2) a person that acquired a portion of the tract on which the source of a 
release of contaminants is located from the person that caused the release who 
meets the provisions of the Texas Health and Safety Code, sec.361.752(b). 
(b) A person electing to participate in the innocent owner/operator program 
shall: 
(1) complete an innocent owner/operator application as provided by Texas Health 
and Safety Code, sec.361.753; 
(2) pay all agency costs associated with the review of the application and the 
issuance of the innocent owner/operator certificate; and 
(3) agree to grant reasonable access to the site for purposes of investigation 
or remediation to a person designated by the executive director. 
(c) A person is not required to be a current owner or operator of the site in 
order to apply for an innocent owner/operator certificate, but must provide 
proof of ownership or operation before a certificate can be issued. 

sec.333.35. Application. 
(a) A person who desires to obtain an innocent owner/operator certificate shall 
submit to the executive director an application and an application fee as 
prescribed by this section. 
(b) An application submitted under this section shall: 
(1) be on a form provided by the executive director; 
(2) contain: 
(A) general information concerning the owner/operator and the site; 
(B) a site investigation report; 
(C) a legal description of the site and the name of the site owner and/or 
operator, as appropriate, at the time of application submittal;
(D) a statement that the owner or operator has not caused or contributed to the 
off-site source or sources of contamination that have released or migrated onto 
the site and is otherwise eligible for an innocent owner/operator certificate; 
and 
(E) other background information requested by the executive director. 
(3) be accompanied by an application fee of $1,000 payable to the Texas Natural 
Resource Conservation Commission. 
(c) The site investigation report shall include the following:
(1) relevant information concerning the potential for human exposure to the 
release or migration of contaminants at the site; 
(2) information concerning site contamination which demonstrates:
(A) that the site has become contaminated as a result of a release or migration 
of contaminants from a source or sources not located on or at the site, and 
(B) that the person has not caused or contributed to the off-site source or 
sources of contamination which have released or migrated onto the site; 
(3) a summary of all known historical and current site uses, including a 
description of areas and activities where potential on-site contaminant sources 
may be located; 
(4) if a portion of the tract was acquired from the person that caused the 
release, then the person applying for the certification shall also provide 
information which demonstrates the following: 
(A) the person acquired the portion of the tract after appropriate inquiry 
consistent with good commercial or customary practice, and 
(B) after conducting this inquiry, the person did not know or have reason to 
know of the contamination at the time the person acquired the site; 
(5) previously completed site investigation reports for the site within the 
possession or control of the applicant; 
(6) a schedule for conducting any additional site investigation activities 
and/or the submittal of additional information that is necessary to complete the 
requirements of this subsection; and 
(7) a description of any placement of institutional or engineering controls on 
the use of the site, proposed by the applicant, that are necessary to protect 
the public health. 
(8) In those instances where there exists on the site an actual or potential 
source or sources of the same or similar contaminants to those that have been 
released or migrated from an off-site source or sources, the applicant or other 
party at its option may conduct an investigation, remediation, or other response 
action with respect to the on-site source or sources and seek approval of that 
action through this section from the executive director.
(d) If a sale, transfer, or change in ownership or operation of the site will 
occur during the application review period for an innocent owner/operator 
certificate, the prospective owner or operator may be added to the application 
as a coapplicant with the current owner or operator. The following information 
regarding the coapplicant shall be included in the application:
(1) general information regarding the prospective owner or operator; 
(2) a statement that the prospective owner or operator has not caused or 
contributed to the off-site source or sources of contamination that have been 
released or migrated onto the site and is otherwise eligible for an innocent 
owner/operator certificate; and 
(3) other background information requested by the executive director. 
(e) If an innocent owner/operator certificate holder contemplates a sale, 
transfer, or change in operation of the site and the prospective owner or 
operator desires receipt of an innocent owner/operator certificate, the 
certificate holder and/or the prospective owner or operator shall submit an 
updated application with the executive director. The updated application shall 
be accompanied by an application fee and shall: 
(1) be on a form provided by the executive director; 
(2) contain: 
(A) a copy of the most recent innocent owner/operator certificate issued for the 
site; 
(B) general information regarding the prospective owner or operator: 
(C) a statement that the prospective owner or operator has not caused or 
contributed to the off-site source or sources of contamination that have been 
released or have migrated onto the site and is otherwise eligible for an 
innocent owner/operator certificate; 
(D) a statement or other documentation which demonstrates that the certificate 
holder: 
(i) has not, during the period since issuance of the most recent certificate, 
caused or contributed to the source or sources of off-site contamination that 
have been released or migrated onto the site; 
(ii) has not, during the period since issuance of the most recent certificate, 
discharged or released on the site any contaminants covered by a prior 
certificate; and 
(iii) remains otherwise eligible for an innocent owner/operator certificate; 
(E) a legal description of the site and the name of the site's owner and/or 
operator, as appropriate, at the time of the updated application submittal; 
(F) a summary of all known historical and current site uses since the most 
recent certificate was issued, including a description of areas and activities 
where potential on-site contaminant sources may be located;
(G) other background information requested by the executive director; and 
(H) additional site investigation activities and additional information 
necessary to complete the requirements of this subsection when activities or 
land use since the most recent certificate was issued may have caused the 
discharge or release of contaminants covered by a prior certificate.
(f) By signing an application, the applicant agrees:
(1) pursuant to Texas Water Code, sec.5.122, that the executive director has the 
authority to issue, deny, or revoke a certificate; and 
(2) to pay the agency all reasonable costs incurred in reviewing the applicant's 
innocent owner/operator application and in issuing the innocent owner/operator 
certificate. 
(g) Any portion of the application fee not incurred or obligated in the review 
of the application and in the issuance of the innocent owner/operator 
certificate will be refunded. 
(h) If an application is not complete, the executive director will provide the 
applicant with a list of all information needed to make the application complete 
and will allow the applicant an opportunity to submit the additional 
information. 

sec.333.36. Information Provided by Adjacent Landowners/Operators. 
(a) The applicant shall mail notice of the application by certified mail, return 
receipt requested, to property owners adjacent to the site within 14 days of 
application submittal on a form provided by the executive director. The notice 
will include the names of the person(s) who are seeking an innocent 
owner/operator certificate, and will explain that information and reports 
regarding the site are available for inspection and copying in the agency's 
files. The notice will also request that within 14 days of receipt of the 
notice, adjacent property owners submit to the executive director additional 
information which may assist the executive director in reviewing the innocent 
owner/operator application. The applicant shall submit copies of the delivered 
notice letter and the signed receipts to the executive director within 7 days of 
applicant's receipt of the signed receipts from the adjacent land owners. Notice 
to governmental entities shall be delivered to the chief clerk or city 
secretary. 
(b) Prior to reviewing any information submitted by adjacent owners, the 
executive director will notify the applicant that information has been received 
and will provide the applicant an opportunity to review the information. Unless 
the applicant notifies the executive director within 14 days of receipt of this 
notice of applicants' intent to withdraw its application, the executive director 
will review the information submitted by adjacent owners, and the applicant will 
be responsible for paying the costs incurred by this review. 

sec.333.37. Withdrawal of Application.
(a) The applicant may withdraw the application by giving advance written notice 
to the executive director. The remainder of the application fee not incurred or 
obligated in the review of the application will be refunded.
(b) Withdrawal of the application does not affect any right the executive 
director has under other law to recover costs. 

sec.333.38.Innocent Owner/Operator Certificate 
(a) Prior to certificate issuance, the applicant and any coapplicant shall 
submit to the executive director an affidavit affirming that neither the 
applicant nor any coapplicant caused or contributed to the off-site source or 
sources of contamination that have been released or have migrated onto the site 
and is otherwise eligible for an innocent owner/operator certificate.
(b) In the case of a sale, transfer, or other change in the ownership or 
operation of the site, the applicant and any coapplicant shall submit to the 
executive director an affidavit from the certificate holder or, if an affidavit 
is unobtainable, other documentation prior to certificate issuance. The 
affidavit or other documentation shall affirm that the current certificate 
holder has not, during the period since issuance of the most recent certificate, 
caused or contributed to the source or sources of off-site contamination that 
have released or migrated onto the site; and during the period since issuance of 
the most recent certificate, has not discharged or released on the site any 
contaminants covered by a prior certificate; and is otherwise eligible for an 
innocent owner/operator certificate. The executive director, in its discretion, 
may require a site investigation report. 
(c) If the executive director determines that a person is an innocent 
owner/operator based upon the application submitted pursuant to sec.333.35 of 
this title (relating to Application), and upon the affidavit(s) submitted by 
applicant(s) and/or the certificate holder, the executive director will issue 
the person an innocent owner/operator certificate. 
(d) The innocent owner/operator certificate shall specify the contaminant(s) and 
the media for which the executive director has confirmed the applicant's 
innocent owner/operator status. 
(e) The innocent owner/operator certificate will acknowledge the protection from 
liability provided by Texas Health and Safety Code, sec.361.752.
(f) If the application of a prospective owner or operator satisfies the 
requirements of sec.333.35 of this title, the executive director will issue an 
innocent owner/operator certificate to the prospective owner or operator only 
after the executive director has received proof of ownership or operation. 
(g) Institutional or engineering controls for a site shall be described in a 
restrictive covenant in favor of the agency and the State of Texas to be filed 
in the real property records in the county in which the site is located. The 
executive director will issue an innocent owner/operator certificate only after 
the executive director has received proof of the filing of the restrictive 
covenant. In the event the applicant is an operator, the applicant must obtain 
written concurrence from the owner of the property before a restrictive covenant 
is filed in the real property records for that property.

sec.333.39. Denial of Certificate.
(a) The executive director may deny the issuance of a certificate under Texas 
Health and Safety Code, sec.361.753: 
(1) if the application is not complete; 
(2) the applicant does not provide sufficient information from which the 
executive director can determine the applicant's eligibility to receive an 
innocent owner/operator certificate under Texas Health and Safety Code, 
sec.361.753; 
(3) information obtained since the application was filed demonstrates that the 
applicant is not an innocent owner or operator; or 
(4) the owner/operator does not grant reasonable access as required by Texas 
Health and Safety Code, sec.361.752(c). 
(b) If the executive director denies the certificate, the executive director 
will notify the person of the reasons for denial. 

sec.333.40. Revocation of Certificate.
(a) The executive director may revoke the innocent owner/operator certificate if 
(1) the certificate holder: 
(A) acquired the innocent owner/operator certificate by fraud, 
misrepresentation, or knowing failure to disclose material information; 
(B) does not properly maintain institutional and/or engineering controls where 
the placement of such controls were required for certificate issuance; or 
(C) does not pay all the agency costs described in sec.333.34(b)(2) of this 
title (relating to Eligibility for Innocent Owner/Operator Certificate) within 
180 days of certificate issuance; or 
(2) new information demonstrates that the certificate holder is not an innocent 
owner or operator. 
(b) Prior to revocation of a certificate, the executive director will provide 
the certificate holder with a notice in writing of the facts alleged to warrant 
revocation. The certificate holder shall have 30 days after receipt of notice to 
demonstrate to the executive director that they are in compliance with all 
requirements of law for the retention of the certificate. The executive director 
will make a determination whether to revoke the certificate and will provide 
such determination in writing to the certificate holder. A decision of the 
executive director to revoke a certificate is final and appealable under Chapter 
361, Subchapter K, of the Texas Health and Safety Code. 

sec.333.41. Access. 
(a) An owner or operator must grant reasonable access to the site for purposes 
of investigation and remediation to persons designated by the executive 
director. 
(b) The commission, its employees, contractors, and agents may access the site 
pursuant to sec.361.752(d) or any other relevant provision of the Texas Health 
and Safety Code, or the Texas Water Code. 

sec.333.42. Cost Recovery. 
If the person does not pay the agency's costs incurred in reviewing the 
application and the issuance of the innocent owner/operator certificate before 
the 31st day after the date the person receives notice that the costs are due 
and owing, the attorney general, at the request of the executive director, may 
bring an action in the name of the State of Texas in Travis County to recover 
the amount owed and reasonable legal expenses, including attorney's fees, 
witness costs, court costs, and deposition costs. 

sec.333.43.Cost Report. 
The executive director will annually calculate the agency's costs to administer 
the innocent owner/operator program and will publish in the Texas Register the 
rates established for the purposes of identifying the costs recoverable by the 
agency under Texas Health and Safety Code, Subchapter V.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 20, 1998.
TRD-9805475
Kevin McCalla 
Director, Legal Division 
Texas Natural Resource Conservation Commission 
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 239-6087 

TITLE 31. NATURAL RESOURCES AND CONSERVATION
PART II. Texas Parks and Wildlife Department
CHAPTER 53.Finance
SUBCHAPTER <nl>A.<ol>License Fees and Boat and Motor Fees
31 TAC sec.53.1
The Texas Parks and Wildlife Department proposes an amendment to sec.53.1, 
concerning License Issuance Procedures, Fees, Possession and Exemption Rules. 
The proposed amendment implements statutory changes and agreements reached with 
Louisiana that simplify licensing requirements for anglers fishing waters along 
the Texas-Louisiana border. 
Proposed amendments to the section will allow persons who hold valid Louisiana 
non-resident fishing licenses to fish all waters that form a common boundary 
between Texas and Louisiana without obtaining a Texas non-resident license. This 
action is contingent on Louisiana allowing the same privileges to persons who 
hold valid Texas non-resident fishing licenses. Louisiana representatives have 
agreed to this action. Legislative changes in HB 2542 gave the Commission 
authority to enter into such agreements. 
The amendment would also allow residents of Louisiana who meet the licensing 
requirements of their state to fish all waters that form a common boundary 
between Texas and Louisiana. This action is contingent on Louisiana allowing the 
same privileges to persons who hold valid Texas resident fishing licenses which 
they have done in the past. Legislative changes in HB 2542 deleted specific 
references to licensing requirements for border waters with Louisiana. Changes 
to sec.53.1(d) are needed to reinstate these agreements in our regulations.
Robin Riechers, staff economist, has determined that for each of the first five 
years that the rule as proposed is in effect, there will be fiscal implications 
to state or local governments as a result of enforcing or administering the 
rule. The department may experience some loss of revenue from non-residents who 
are licensed in Louisiana who would now be allowed to fish the Texas side of all 
border waters. Current rules require those non-residents to purchase a Texas 
non-resident fishing license to fish in the Texas portion of all border waters. 
Mr. Riechers has also determined that for each of the first five years the rule 
as proposed is in effect the public benefit anticipated as a result of 
administering or enforcing the rule as proposed will be consistency in 
regulations concerning license requirements for fishing on Texas border waters. 
There are no anticipated effects on small businesses, and the cost to 
individuals required to comply with the rule as proposed will decrease, as some 
current license holders will be exempted from license purchase requirements in 
the future. 
The department has not filed a local impact statement with the Texas Employment 
Commission as required by the Administrative Procedures Act, Government Code, 
sec.2001.022, as the agency has determined that the rule as proposed will not 
impact local economies. 
Comments on the proposed amended section may be sent to Ken Kurzawski, Inland 
Fisheries Division, 4200 Smith School Road, Austin, TX, 78744, (512) 389-4591. 
Comments may also be sent by electronic mail to ken.kurzaswski@tpwd.state.tx.us.
The amendment is proposed under Parks and Wildlife Code, sec.sec.41.003-41.006, 
which provide the Parks and Wildlife Commission with the authority to enter into 
reciprocal license agreements with states having a common border with Texas to 
govern the issuance and fees for fishing and migratory waterfowl hunting 
licenses. 
The proposed amendment affects Parks and Wildlife Code, sec.sec.41.003-41.006.

sec.53.1.License Issuance Procedures, Fees, Possession and Exemption Rules.
(a)-(c) (No change.) 
(d) The following categories of persons are exempt from fishing license 
requirements and fees for the license years beginning September 1, 1995, and 
thereafter: 
(1)-(3) (No change.)
(4) non-residents 64 years of age or older from Oklahoma; [and] 
(5) residents whose birth date is before September 1, 1930<nl>;<ol>[.] 
<nl>(6)<ol> <nl>persons who hold valid Louisiana non-resident fishing licenses 
while fishing on all waters that form a common boundary between Texas and 
Louisiana inland from a line across Sabine Pass between Texas Point and 
Louisiana Point if the State of Louisiana allows a reciprocal privilege to 
persons who hold valid Texas annual or temporary non-resident fishing licenses; 
and <ol>
<nl>(7)<ol> <nl>residents of Louisiana who meet the licensing requirements of 
their state while fishing on all waters that form a common boundary between 
Texas and Louisiana inland from a line across Sabine Pass between Texas Point 
and Louisiana Point if the State of Louisiana allows a reciprocal privilege to 
Texas residents who hold valid Texas fishing licenses.<ol> 
(e) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 17, 1998.
TRD-9805412
Bill Harvey, Ph.D.
Regulatory Coordinator
Texas Parks and Wildlife Department
Proposed date of adoption: June 4, 1998
For further information, please call: (512) 389-4642

SUBCHAPTER I.Additional Wildlife Permits
31 TAC sec.53.80
The Texas Parks and Wildlife Department proposes new sec.53.80, concerning 
Additional Wildlife Permits. The new section is necessary to set the fees for 
application and renewal of deer management permits and to implement the fees for 
commercial nongame permits. The new section will function to establish a fee of 
$1,000 for an initial deer management permit application and a fee of $500 for 
annual renewal; and will impose fees for residents and nonresidents required to 
possess a commercial nongame permit for the possession and/or sale of nongame 
wildlife. 
Robert Macdonald, Wildlife Division regulations coordinator, has determined that 
for each of the first five years that the proposed new section is in effect, 
there will be a fiscal impact to state government, namely, the generation of 
revenue to the department by the sale of the permits to persons required to 
possess the permits. The department is unable to quantify estimated revenue 
because the permits are new and there are no historical data upon which to base 
such an estimate. There will be no fiscal impact on local governments as a 
result of enforcing or administering the proposed new section.
Mr. Macdonald also has determined that for each of the first five years the 
proposed new section is in effect, the public benefit anticipated as a result of 
enforcing the rule as proposed will be the enhanced management of white-tailed 
deer in this state and the discharge of the agency's statutory duty to manage 
the nongame wildlife of the state for the enjoyment of the citizenry. 
There will be no effect on small businesses. The economic costs to persons 
required to comply with the rule as proposed will be: an application fee of 
$1,000 fee for the deer management permit and a $500 fee for permit renewal; and 
a $15 fee for the resident nongame collection permit ($50 for nonresidents) and 
a $50 fee for the resident nongame dealer's permit ($200 for nonresidents).
The department has not filed a local impact statement with the Texas Workforce 
Commission as required by Government Code, sec.2001.022, as this agency has 
determined that the rule as proposed will not impact local economies. The 
department has determined that there will not be a taking of private real 
property, as defined by Government Code, Chapter 2007, as a result of the 
proposed rule. 
Comments on the proposed rule may be submitted to Jerry Cooke, Texas Parks and 
Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4774 
or 1-800-792-1112. 
The new section is proposed under Parks and Wildlife Code, Chapter 43, 
Subchapter R, as enacted by the passage of House Bill 2542, 75th Texas 
Legislature, Regular Session, 1997, which provides the commission with authority 
to establish a permit and fees for the management of wild white-tailed deer; and 
under sec.67.0041, which provides the commission with authority to establish a 
fee for permits issued under the authority of Parks and Wildlife Code, Chapter 
67. 
The new section affects Parks and Wildlife Code, Chapter 43, Subchapter R, and 
Chapter 67.

sec.53.80.Miscellaneous Wildlife Licenses and Permits.
(a) Deer management permit. The following permit application processing fee 
amounts are effective beginning September 1, 1998, and thereafter. Permit 
application processing fees (fees also prescribed in Chapter 65 of this title 
(relating to Wildlife)): 
(1) application for deer management permit - $1,000; and 
(2) renewal of deer management permit - $500. 
(b) Commercial nongame permits. The following permit fee amounts (fees also 
prescribed in Chapter 65 of this title) are effective for the license year 
beginning September 1, 1998, and thereafter: 
(1) Resident Nongame Commercial Collector Permit (type 580) - $15; 
(2) Nonresident Nongame Commercial Collector Permit (type 581) - $50; 
(3) Resident Nongame Commercial Dealer Permit (type 582) - $50; and 
(4) Nonresident Nongame Commercial Dealer Permit (type 583) - $200. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 20, 1998.
TRD-9805478
Bill Harvey
Regulatory Coordinator
Texas Parks and Wildlife Department
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 389-4775

CHAPTER 65.Wildlife
SUBCHAPTER A.Statewide Hunting and Fishing Proclamation
The Texas Parks and Wildlife Department proposes the repeal of sec.65.26 and new 
sec.65.26, concerning Managed Lands Deer (MLD) permits. The repeal and new 
section are necessary to advance the commission policy of providing the maximum 
opportunity for the enjoyment of wildlife resources by the citizens of this 
state. The new section will function to establish: eligibility requirements for 
the issuance of MLD permits; privileges accruing to the holders of MLD permits; 
tagging requirements; the conditions and time periods during which it is lawful 
to hunt deer on properties for which MLD permits have been issued; provisions 
for the return of MLD permits by landowners who opt out of the program; and 
conditions under which the department may refuse to issue MLD permits. 
Robert Macdonald, Wildlife Division regulations coordinator, has determined that 
for each of the first five years that the proposed new section is in effect, 
there will be no negative fiscal implications to state or local governments as a 
result of enforcing or administering the proposed new section. 
Mr. Macdonald also has determined that for each of the first five years the 
proposed new section is in effect, the public benefit anticipated as a result of 
enforcing the rule as proposed will be increased recreational opportunity as a 
result of encouraging optimized management of deer on private lands in this 
state. 
There will be no effect on small businesses. There are no economic costs to 
persons required to comply with the rules as proposed, because participation is 
not mandatory and there is no fee for participation. 
The department has not filed a local impact statement with the Texas Workforce 
Commission as required by Government Code, sec.2001.022, as this agency has 
determined that the rules as proposed will not impact local economies. The 
department has determined that there will not be a taking of private real 
property, as defined by Government Code, Chapter 2007, as a result of the 
proposed rules. 
Comments on the proposed rules may be submitted to Jerry Cooke, Texas Parks and 
Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4774 
or 1-800-792-1112. 

Division <nl>1<ol>. General Provisions
31 TAC sec.65.26
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Parks and 
Wildlife Commission or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The repeal is proposed under Parks and Wildlife Code, Chapter 61, Uniform 
Wildlife Regulatory Act (Wildlife Conservation Act of 1983), which provides the 
Commission with authority to establish wildlife resource regulations for this 
state. 
The repeal affects Parks and Wildlife Code, Chapter 61. 
sec.65.26.Managed Lands Deer (MLD) Permits.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 20, 1998.
TRD-9805481
Bill Harvey
Regulatory Coordinator
Texas Parks and Wildlife Department
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 389-4775

31 TAC sec.65.26
The new section is proposed under Parks and Wildlife Code, Chapter 61, Uniform 
Wildlife Regulatory Act (Wildlife Conservation Act of 1983), which provides the 
Commission with authority to establish wildlife resource regulations for this 
state. 
The new section affects Parks and Wildlife Code, Chapter 61. 

sec.65.26.Managed Lands Deer (MLD) Permits.
(a) MLD permits may be issued only to a landowner who has a current WMP in 
accordance with sec.65.25 of this title (relating to Wildlife Management Plan) 
that specifies a harvest quota of buck and/or antlerless white-tailed deer or 
antlerless mule deer. 
(b) An applicant may request the issuance of permits for antlerless-only or 
both-sex harvest quotas for white-tailed deer, or an antlerless-only harvest 
quota for mule deer. 
(c) The number of MLD permits distributed to a hunter shall be at the discretion 
of the landowner. 
(d) Except for deer taken under an Antlerless and Spike-Buck Control Permit, all 
deer harvested on a property where MLD permits have been issued must immediately 
be tagged with the appropriate MLD permit as specified in the WMP and with the 
appropriate tag from the hunting license of the person who killed the deer. 
(e) On all tracts of land for which both MLD buck permits and MLD antlerless 
permits have been issued for the harvest of white- tailed deer, and on 
properties for which the WMP specifies a harvest quota of zero for either sex: 
(1) the bag limit shall be five white-tailed deer, no more than three bucks, 
regardless of the county bag limit; 
(2) the provisions of sec.65.42(b)(7) of this title (relating to Archery-Only 
Open Season) and the stamp requirements of Parks and Wildlife Code, Chapter 43, 
Subchapter I, do not apply; 
(3) the landowner may allow the hunting of white-tailed deer from the Saturday 
closest to September 30 through the third Sunday in January; and 
(4) a hunter shall use an appropriate white-tailed deer tag from his or her 
hunting license, provided the hunter also possesses an appropriate MLD permit 
for each deer taken. 
(f) If a landowner in possession of MLD permits does not wish to abide by the 
harvest quota specified by the WMP, the landowner must return all MLD permits to 
the department by opening day of that year's special archery season. 
(g) The department reserves the right to deny further issuance of MLD permits to 
a landowner who exceeds the harvest quota specified by the WMP or who does not 
otherwise abide by the WMP. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 20, 1998.
TRD-9805482
Bill Harvey
Regulatory Coordinator
Texas Parks and Wildlife Department
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 389-4775

SUBCHAPTER D.Deer Management Permit
31 TAC sec.sec.65.131-65.138
The Texas Parks and Wildlife Department proposes new sec.sec.65.131-65.138, 
concerning deer management permits. The new sections are necessary to implement 
the provisions of House Bill 2542, enacted by the 75th Legislature, which 
authorized the commission to create and administer a permit for the management 
of white-tailed deer. The new sections will function to establish a deer 
management permit; provide for application requirements and fees; establish 
general provisions; specify facility standards for pens in which deer are 
detained, the period of time deer may be detained, the requirements for marking 
detained deer, and the manner in which detained deer are released; provide for 
the disposition of incidental mortalities; and impose penalties for violations 
of the new sections. 
Robert Macdonald, Wildlife Division regulations coordinator, has determined that 
for each of the first five years that the proposed new sections are in effect, 
there will be no fiscal implications to state or local governments as a result 
of enforcing or administering the proposed new sections.
Mr. Macdonald also has determined that for each of the first five years the 
proposed new sections are in effect, the public benefit anticipated as a result 
of enforcing the rules as proposed will be the enhanced management, stewardship, 
and conservation of white-tailed deer in this state. 
There will be no effect on small businesses. There are no economic costs to 
persons required to comply with the rules as proposed, because the permit is not 
mandatory. Persons applying for the permit, however, must pay a $1,000 fee for 
the initial permit and a $500 fee for permit renewal. 
The department has not filed a local impact statement with the Texas Workforce 
Commission as required by Government Code, sec.2001.022, as this agency has 
determined that the rules as proposed will not impact local economies. The 
department has determined that there will not be a taking of private property, 
as defined by Government Code, Chapter 2007, as a result of the proposed rules. 
Comments on the proposed rules may be submitted to Jerry Cooke, Texas Parks and 
Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4774 
or 1-800-792-1112. 
The new sections are proposed under Parks and Wildlife Code, Chapter 43, 
Subchapter R, as enacted by the passage of House Bill 2542, 75th Texas 
Legislature, Regular Session, 1997, which provides the commission with authority 
to establish a permit for the management of wild white-tailed deer; the number, 
type, and length of time that deer may be detained in an enclosure; and the fee 
for a deer management permit. 
The new sections affect Parks and Wildlife Code, Chapter 43, Subchapter R. 

sec.65.131.Deer Management Permit (DMP).
(a) The department may issue a Deer Management Permit to a person who has met 
the requirements of sec.65.126 of this title (relating to Permit Application and 
Fees). 
(b) A person who possesses a valid Deer Management Permit may trap and detain 
wild deer according to the provisions of this subchapter and Parks and Wildlife 
Code, Chapter 43, Subchapter R. A permittee shall abide by the terms of an 
approved deer management plan. 
(c) The provisions of Parks and Wildlife Code, Chapter 43, Subchapters C, E, and 
L do not apply to deer lawfully detained under a valid DMP, and no other permit 
or license is necessary to conduct activities authorized under a DMP. 
(d) Changes to an approved Deer Management Plan shall be considered as a new 
application. 

sec.65.132.Permit Application and Fees.
Applicants for a DMP shall complete and submit an application on a form supplied 
by the department. Applications for a DMP shall be accompanied by a deer 
management plan containing the information stipulated by the application form 
and the nonrefundable fee as specified in sec.53.8 of this title (relating to 
Miscellaneous Wildlife Licenses and Permits). Incomplete applications will be 
returned to the applicant and will not be processed until complete. No DMP may 
be issued until the applicant's deer management plan has been approved by a 
department employee classified as Conservation Scientist VI or higher.

sec.65.133.General Provisions.
(a) Deer detained under a DMP shall not be commingled with deer held under any 
other license or permit, except as provided under this subchapter. 
(b) Any deer introduced into a pen containing deer detained under a DMP become 
wild deer and must be released according to the provisions of sec.65.130 of this 
title (relating to Release). 
(c) The holder of a DMP is entitled to the issuance of Managed Lands Deer 
Permits subject to the provisions of sec.65.26 of this title (relating to 
Managed Lands Deer (MLD) Permits). 
(d) A DMP authorizes the permittee to detain deer for natural breeding only. 
(e) No deer or by-products of any deer held under a DMP may be sold, bartered, 
or traded for any consideration. 

sec.65.134.Facility Standards.
(a) No pen used to detain deer under a DMP shall be more than 100 acres in area 
or less than five acres in area, except as provided in subsection (b) of this 
section. 
(b) A pen less than five acres in area must contain at least 50,000 square feet 
of continuous natural vegetation of the type typically used by white-tailed deer 
for concealment and cover. 
(c) During the period from September 1 through January 31, no pen shall contain 
more than: 
(1) one buck deer; and/or 
(2) 20 doe deer. 

sec.65.135.Detention and Marking of Deer.
(a) No trapping of deer under a DMP may take place between March 2 and August 31 
of any year. 
(b) All deer detained under a DMP shall be released by no later than ten months 
following capture, unless the detention is approved by the department in the 
applicant's management plan. 
(c) All deer detained under a DMP shall be marked, at a minimum, by a continuous 
stripe of yellow, acrylic, water-based paint no less than three inches wide 
along the spine from the shoulders to the tail, or as approved by the department 
in the applicant's deer management plan. 

sec.65.136.Release.
(a) Release of deer shall be effected by removing, for a continuous distance of 
no less than 100 yards, those components of a pen that serve to maintain deer in 
a state of detention within the pen. Such components shall be removed for no 
fewer than 60 consecutive days. The provisions of this subsection may be 
altered, provided the specific details of the release technique are included in 
the applicant's deer management plan and are approved by the department.
(b) No deer held under a DMP shall be released between November 1 and March 1, 
unless such release is approved by the department in the applicant's management 
plan.

sec.65.137.Disposition of Mortalities.
A permittee shall, within ten days of disposing of any deer under the provisions 
of this section, complete and forward to the department a department-issued or 
department-approved disposition receipt form accounting for each deer disposed 
of under the provisions of this section. All deer that die as a result or in the 
course of activities conducted under a DMP shall be kept in an edible condition 
and disposed of by one of the following methods: 
(1) donation to charitable organizations, public hospitals, orphanages, or 
indigent persons; 
(2) transfer or donation to other persons authorized to receive such specimens 
under a license or permit issued by the department; or 
(3) special disposition as prescribed in writing by the department. 

sec.65.138.Violations and Penalties.
A person who violates any provision of this subchapter commits an offense and is 
subject to the penalties prescribed by Parks and Wildlife Code, Chapter 43, 
Subchapter R. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 20, 1998.
TRD-9805483
Bill Harvey
Regulatory Coordinator
Texas Parks and Wildlife Department
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 389-4775

SUBCHAPTER N.Migratory Gamebird Proclamation
31 TAC sec.sec.65.309, 65.312-65.320 
The Texas Parks and Wildlife Department proposes amendments to sec.sec.65.309 
and 65.312-65.320, concerning the Migratory Game Bird Proclamation. The 
amendment to sec.65.309, concerning Definitions, adds a definition of Harvest 
Information Program (HIP), modifies the definition of nontoxic shot to eliminate 
unnecessary verbiage, and numbers the definitions to conform with the new Texas 
Register style sheet. The amendment of sec.65.312 makes the documentation 
requirement for migratory game birds the same as all other game birds except 
turkey and is necessary to insure the integrity of established bag and 
possession limits. The amendment of sec.65.313 eliminates redundant wording 
already in statute, makes HIP requirements conform to those in federal 
regulations, and authorizes the executive director to engage in rulemaking after 
notifying the chairman of the commission. The amendment to sec.65.314, 
concerning Zones and Boundaries for Early Season Species, adds three species of 
migratory game birds (sandhill cranes, woodcock, and snipe) from sec.65.317, 
concerning Zones and Boundaries for Late Season Species, to place species with 
similar hunting regulations in the same section. The amendment to sec.65.315, 
concerning Open Seasons and Bag Limits- Early Season, adjusts season dates to 
provide for optimum hunter opportunity, delays the opening of teal season and 
the first segment of the rail and gallinule season by one week, clarifies the 
bag composition for doves as adopted by the commission in 1997, and relocates 
the season dates for sandhill cranes, woodcock, and snipe from sec.65.318, 
concerning Open Seasons and Bag Limits-Late Season Species, to consolidate 
provisions for those species in a single section with similar provisions for 
other species. The amendment to sec.65.316, concerning Closed Areas, eliminates 
the white-winged dove sanctuary areas, which are no longer necessary for the 
management of that species. The amendment to sec.65.317, concerning Zones and 
Boundaries for Late Season Species, has been described earlier. The amendment to 
sec.65.318, concerning Open Seasons and Bag Limits-Late Season, adjusts season 
dates to provide for optimum hunter opportunity and moves the season dates for 
sandhill cranes, woodcock, and snipe to another section for the reasons 
described earlier. The amendments to sec.65.319 and sec.65.320, concerning 
Extended Falconry Seasons for Early Season Species and Late Season Species, 
respectively, adjusts season dates to provide for optimum hunter opportunity and 
removes provisions for sandhill cranes, woodcock, and snipe for relocation to 
another section. 
Final adoption of any regulation involving migratory game-bird resources is 
contingent upon regulatory frameworks issued by the Office of Migratory Bird 
Management, U.S. Fish and Wildlife Service. The commission's policy is to adopt 
the most liberal regulations possible under those federal frameworks. Robert 
Macdonald, Wildlife Division regulations coordinator, has determined that for 
each of the first five years that the proposed rules are in effect, there will 
be no additional fiscal implications to state or local governments as a result 
of enforcing or administering the proposed amendment. 
Mr. Macdonald also has determined that for each of the first five years the 
amendment and new rule as proposed are in effect, the public benefit anticipated 
as a result of enforcing the rules as proposed will be the department's 
discharge of its statutory obligation to manage and conserve the state's 
populations of migratory game birds, as well as implementation of commission 
policy to maximize recreational opportunity for the citizenry. 
There will be no effect on small businesses. There are no additional economic 
costs to persons required to comply with the rules as proposed. 
The department has not filed a local impact statement with the Texas Workforce 
Commission as required by Government Code, sec.2001.022, as this agency has 
determined that the rules as proposed will not impact local economies. The 
department has determined that there will not be a taking of private real 
property, as defined by Government Code, Chapter 2007, as a result of the 
proposed rules. 
Comments on the proposed rules may be submitted to Vernon Bevill, Texas Parks 
and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-
4578 or 1-800-792-1112. 
The amendments are proposed under Parks and Wildlife Code, Chapter 64, 
Subchapter C, which authorizes the Commission and the Executive Director to 
provide the open season and means, methods, and devices for the hunting and 
possessing of migratory game birds. 
The amendments affect Parks and Wildlife Code, Chapter 64, Subchapter C.

sec.65.309.Definitions.
The following words and terms, when used in this subchapter, shall have the 
following meanings, unless the context clearly indicates otherwise. All other 
words and terms shall have the meanings assigned in Subchapter A of this chapter 
(relating to Statewide Hunting and Fishing Proclamation).
<nl>(1)<ol> Baited area--Any area where shelled, shucked, or unshucked corn, 
wheat, or other grain, salt, or other feed capable of luring, attracting, or 
enticing such birds is directly or indirectly placed, exposed, deposited, 
distributed, or scattered; and the area shall remain a baited area for ten days 
following complete removal of all such corn, wheat, or other grain, salt or 
other feed. 
<nl>(2)<ol> Baiting--The placing, exposing, depositing, distributing, or 
scattering of shelled, shucked, or unshucked corn, wheat, or other grain, salt, 
or other feed so as to constitute for migratory game birds a lure, attraction, 
or enticement to, on, or over areas when hunters are attempting to take such 
birds. 
<nl>(3)<ol> Dark geese--Canada, white-fronted, and all other geese except light 
geese. 
<nl>(4)<ol> <nl>Harvest Information Program (HIP)--A mandatory certification 
process for all persons who hunt or intend to hunt migratory game birds. To be 
certified, a person must answer a series of questions about their migratory 
game-bird hunting habits. <ol>
<nl>(5)<ol> Legal shotgun--A shotgun not larger than 10 gauge, fired from the 
shoulder, and incapable of holding more than three shells. (Guns capable of 
holding more than three shells must be plugged with a one-piece filler which is 
incapable of removal without disassembling the gun, so the gun's total capacity 
does not exceed three shells.) 
<nl>(6)<ol> Light geese--Snow, blue, and Ross' geese. 
<nl>(7)<ol> Nontoxic shot--Any <nl>shot<ol>[shot-type that does not cause 
sickness and death when ingested by migratory birds as determined by criteria 
established under Code of Federal Regulations, Title 50, Chapter 1, sec.20.134. 
The only nontoxic shot currently] approved by the director, U.S. Fish and 
Wildlife Service[, is steel shot (including copper, nickel, or zinc coated steel 
shot), bismuth-tin shot, or tungsten-iron shot]. 
<nl>(8)<ol> Personal residence--One's principal or ordinary home or dwelling 
place. The term does not include a temporary or transient place of residence or 
dwelling such as a hunting club, or any club house, cabin, tent, or trailer 
house used as a hunting club, or any hotel, motel, or rooming house used during 
a hunting, pleasure, or business trip.
<nl>(9)<ol> Sinkbox--Any type of low floating device having a depression which 
affords the hunter a means of concealing himself below the surface of water. 
<nl>(10)<ol> Wildlife resource--For the purposes of this subchapter, wildlife 
resource includes all migratory birds. 

sec.65.312.Possession of Migratory Game Birds.
(a) (No change.) 
(b) A person may give, leave, receive, or possess any species of legally taken 
migratory game birds, or parts of birds, that are protected by a bag or 
possession limit, if the birds are accompanied by a wildlife resource document 
from the person who killed the birds. For example, a <nl>wildlife resource<ol> 
document is required if the birds are being transported by another person for 
the hunter, or if the birds have been left for cleaning, storage (including 
temporary storage), shipment, or taxidermy services. The <nl> wildlife 
resource<ol> document is not required of a person who lawfully killed the birds 
to possess the birds, or if the birds are transferred at the personal residence 
of the donor or donee. <nl>If the birds have been finally processed at a cold 
storage or processing facility and a person transports more than a legal 
possession limit, then a wildlife resource document must accompany the birds in 
excess of the possession limit until they reach the permanent residence of the 
possessor. Except as provided in this subsection, a wildlife resource<ol> [The] 
document shall accompany the birds until the birds reach their final destination 
and must contain the following information: 
(1)-(5) (No change.) 
(c) (No change.) 

sec.65.313.General Rules.
(a) No person shall hunt migratory game birds except during the open season as 
provided herein, or at any time except during the hours as provided herein. All 
dates are inclusive. 
[(b) No person shall kill or wound a migratory game bird without making a 
reasonable effort to retrieve it.] 
[(c) Every migratory game bird wounded by hunting and retrieved by the hunter 
shall be immediately killed and become a part of the daily bag limit.] 
<nl>(b)<ol> [(d)] Shooting hours for migratory game birds are from one-half hour 
before sunrise to sunset, except during the special white-winged dove season. 
<nl>In the special white- winged dove zone during<ol> [During] the special 
white-winged dove season, shooting hours are from noon to sunset. 
<nl>(c)<ol> <nl> No person shall hunt migratory game birds in this state unless 
that person is certified in the Harvest Information Program. <ol> 
<nl>(d)<ol> <nl>The executive director may, after notifying the Chairman of the 
Commission, authorize any rulemaking necessary to modify the provisions of this 
subchapter.<ol> 

sec.65.314.Zones and Boundaries for Early Season Species.
(a) (No change.) 
(b) Mourning <nl>and white-winged<ol> doves. 
(1) North Zone: That portion of the state north of a line beginning at the 
International Bridge south of Fort Hancock; thence north along FM 1088 to State 
Highway 20; thence west along State Highway 20 to State Highway 148; thence 
north along State Highway 148 to Interstate Highway 10 at Fort Hancock; thence 
east along Interstate Highway 10 to Interstate Highway 20; thence northeast 
along Interstate Highway 20 to Interstate Highway 30 at Fort Worth; thence 
northeast along Interstate Highway 30 to the Texas-Arkansas state line. 
(2) Central Zone: That portion of the state between the North Zone and the South 
Zone. 
(3) South Zone: That portion of the state south of a line beginning at the 
International Toll Bridge in Del Rio; thence northeast along U.S. Highway 277 
Spur to U.S. Highway 90 in Del Rio; thence east along U.S. Highway 90 to 
Interstate Highway 10 at San Antonio; thence east along Interstate Highway 10 to 
the Texas-Louisiana State Line. 
<nl>(4)<ol> [(c) White-winged doves.] Special white-winged dove area: That 
portion of the state south and west of a line beginning at the International 
Toll Bridge in Del Rio; thence northeast along U.S. Highway 277 Spur to U.S. 
Highway 90 in Del Rio; thence east along U.S. Highway 90 to United States 
Highway 83 at Uvalde; thence south along U.S. Highway 83 to State Highway 44; 
thence east along State Highway 44 to State Highway 16 at Freer; thence south 
along State Highway 16 to State Highway 285 at Hebbronville; thence east along 
State Highway 285 to FM 1017; thence southeast along FM 1017 to State Highway 
186 at Linn; thence east along State Highway 186 to the Mansfield Channel at 
Port Mansfield; thence east along the Mansfield Channel to the Gulf of Mexico. 
<nl>(c)<ol> [(d)] Gallinules (Moorhen or common gallinule and purple gallinule): 
statewide. 
<nl>(d)<ol> [(e)] Teal ducks (blue-winged, green-winged, and cinnamon): 
statewide. 
<nl>(e)<ol> <nl> Sandhill cranes.<ol> 
<nl>(1)<ol> <nl>Zone A: that portion of Texas lying west of a line beginning at 
the international toll bridge at Laredo, thence northeast along U.S. Highway 81 
to its junction with Interstate Highway 35 in Laredo, thence north along 
Interstate Highway 35 to its junction with Interstate Highway 10 in San Antonio, 
thence northwest along Interstate Highway 10 to its junction with U.S. Highway 
83 at Junction, thence north along U.S. Highway 83 to its junction with U.S. 
Highway 62, 16 miles north of Childress, thence east along U.S. Highway 62 to 
the Texas-Oklahoma state line. <ol>
<nl>(2)<ol> <nl> Zone B: That portion of Texas lying within boundaries beginning 
at the junction of Interstate Highway 35 and the Texas- Oklahoma state line, 
thence south along Interstate Highway 35 (following Interstate Highway 35 West 
through Fort Worth) to its junction with Interstate Highway 10 in San Antonio 
thence northwest along Interstate Highway 10 to its junction with U.S. Highway 
83 in Junction, thence north along U.S. Highway 83 to its junction with U.S. 
Highway 62, 16 miles north of Childress, thence east along U.S. Highway 62 to 
the Texas-Oklahoma state line, thence eastward along the Texas-Oklahoma state 
line to Interstate Highway 35. <ol>
<nl>(3)<ol> <nl>Zone C: that portion of Texas lying within boundaries beginning 
at the international toll bridge at Brownsville, thence north and east along 
U.S. Highway 77 to its junction with U.S. Highway 87 at Victoria, thence 
eastward along U.S. Highway 87 to its junction with Farm Road 616 at Placedo, 
thence north and east along Farm Road 616 to its junction with State Highway 35, 
thence north and east along State Highway 35 to its junction with State Highway 
6 at Alvin, thence west and north along State Highway 6 to its junction with 
U.S. Highway 290, thence westward along U.S. Highway 290 to its junction with 
Interstate Highway 35 at Austin, thence south along Interstate Highway 35 to its 
junction with U.S. Highway 81 in Laredo, thence southwest along U.S. Highway 81 
to the international toll bridge in Laredo, thence south and east along the 
U.S.-Mexico international boundary to its junction with the U.S. Highway 77 
international toll bridge at Brownsville.<ol>
<nl>(f)<ol> <nl>Woodcock: statewide. <ol>
<nl>(g)<ol> <nl>Common snipe: statewide. <ol>

sec.65.315.Open Seasons and Bag and Possession Limits-Early Season.
(a) Rails. 
(1) Dates: September <nl>19-27, 1998<ol> [13-21, 1997], and November <nl>7, 
1998<ol> [8, 1997] -January <nl> 6, 1999<ol> [7, 1998]. 
(2) (No change.) 
(b) <nl>Dove seasons<ol> [Mourning doves]. 
(1) North Zone. 
(A) Dates: September 1-October 30, <nl>1998<ol> [1997]. 
(B) Daily bag <nl>limit<ol> [and possession limits]: 15 mourning doves, white-
winged doves, and white-tipped (white-fronted) doves in the aggregate including 
no more than [six white- winged doves and] two white-tipped doves per day; [30 
mourning doves, white-winged doves, and white-tipped doves in the aggregate 
including no more than 12 white-winged doves and four white-tipped doves in 
possession;] 
(C) <nl> Possession limit: <ol>[Special provision: the provisions of 
subparagraph (B) of this paragraph are replaced by the following provisions. 
Daily bag and possession limits: 15 mourning doves, white-winged doves, and 
white-tipped (white-fronted) doves in the aggregate, including no more than two 
white-tipped doves per day;] 30 mourning doves, white-winged doves, and white-
tipped doves in the aggregate, including no more than four white-tipped doves in 
possession. 
(2) Central Zone. 
(A) Dates: September 1-October <nl>18, 1998<ol> [19, 1997], and December 26, 
<nl>1998<ol> [1997]-January <nl> 6, 1999<ol> [5, 1998]. 
(B) Daily bag <nl>limit<ol> [and possession limits]: 15 mourning doves, white-
winged doves, and white-tipped (white- fronted) doves in the aggregate including 
no more than [six white-winged doves and] two white-tipped doves per day[; 30 
mourning doves, white-winged doves, and white-tipped doves in the aggregate 
including no more than 12 white-winged doves and four white-tipped doves in 
possession]. 
(C) <nl>Possession limit:<ol> [Special provision: the provisions of subparagraph 
(B) of this paragraph are replaced by the following provisions. Daily bag and 
possession limits: 15 mourning doves, white-winged doves, and white-tipped 
(white-fronted) doves in the aggregate, including no more than two white-tipped 
doves per day;] 30 mourning doves, white-winged doves, and white-tipped doves in 
the aggregate, including no more than four white-tipped doves in possession. 
(3) South Zone. 
(A) Dates: Except in the special white-winged dove area as defined in sec.65.314 
of this title (relating to Zones and Boundaries for Early Season Species), 
September <nl>25<ol> [20]- November <nl> 8, 1998<ol> [7, 1997], and December 26, 
<nl>1998<ol> [1997]-January <nl>9, 1999<ol> [5, 1998]. In the special white-
winged dove area, the mourning dove season is September <nl>25<ol> [20]-November 
<nl>8, 1998<ol> [3, 1997], and December 26, <nl>1998<ol> [1997]-January 5, 
<nl>1999<ol> [1998
(B) Daily bag <nl>limit<ol> [and possession limits]: 15 mourning doves, white-
winged doves, and white-tipped (white-fronted) doves in the aggregate<nl>,<ol> 
including no more than [six white-winged doves and] two white-tipped doves per 
day[; 30 mourning doves, white-winged doves, and white-tipped doves in the 
aggregate, including no more than 12 white-winged doves and four white-tipped 
doves in possession
(C) <nl> Possession limit: <ol>[Special provision: the provisions of 
subparagraph (B) of this paragraph are replaced by the following provisions. 
Daily bag and possession limits: 15 mourning doves, white-winged doves, and 
white-tipped (white- fronted) doves in the aggregate, including no more than two 
white-tipped doves per day;] 30 mourning doves, white-winged doves, and white-
tipped doves in the aggregate, including no more than four white-tipped doves in 
possession. 
<nl>(4)<ol> [(c)] <nl>Special white-winged dove area.<ol> [White- winged doves].
<nl>(A)<ol> [(1)] Dates: September <nl>5, 6, 12, and 13, 1998<ol> [6, 7, 13, and 
14, 1997]. 
<nl>(B)<ol> [(2)] Daily bag <nl>limit<ol> [and possession limits]: 10 white-
winged doves, mourning doves, and white-tipped (white-fronted) doves, in the 
aggregate to include no more than five mourning doves and two white-tipped doves 
per day[; 20 white-winged doves, mourning doves, and white-tipped doves in the 
aggregate to include no more than 10 mourning doves and four white-tipped doves 
in possession].
<nl>(C)<ol> <nl> Possession limit: 20 white-winged doves, mourning doves, and 
white-tipped doves in the aggregate to include no more than 10 mourning doves 
and four white-tipped doves in possession. <ol>
<nl>(c)<ol> [(d)] Gallinules. 
(1) Dates: September <nl>19-27, 1998<ol> [13-21, 1997], and November <nl>7, 
1998<ol> [8, 1997]-January <nl> 6, 1999<ol> [7, 1998]. 
(2) Daily bag and possession limits: 15 in the aggregate per day; 30 in the 
aggregate in possession. 
<nl>(d)<ol> [(e)] Teal ducks. 
(1) Dates: September <nl>19-27, 1998<ol> [13-21, 1997
(2) Daily bag and possession limits: four in the aggregate per day; eight in the 
aggregate in possession. 
<nl>(e)<ol> [(f)] Red-billed pigeons, and band-tailed pigeons. No open season.
<nl>(f)<ol>[(g)] Shorebirds. No open season. 
<nl>(g)<ol> <nl>Sandhill cranes. A free permit is required of any person to hunt 
sandhill cranes in areas where an open season is provided under this 
proclamation. Permits will be issued on an impartial basis with no limitation on 
the number of permits that may be issued. The daily bag limit is three. The 
possession limit is six. <ol>
<nl>(1)<ol> <nl>Zone A: November 7, 1998-February 7, 1999.<ol>
<nl>(2)<ol> <nl>Zone B: November 28, 1998-February 7, 1999. <ol>
<nl>(3)<ol> <nl> Zone C: January 2, 1999-February 7, 1999. <ol>
<nl>(h)<ol> <nl>Woodcock: December 18, 1998-January 31, 1999. The daily bag 
limit is three. The possession limit is six. <ol>
<nl>(i)<ol> <nl>Common snipe (Wilson's snipe or jacksnipe): October 17, 1998-
January 31, 1999. The daily bag limit is eight. The possession limit is 16. <ol>

sec.65.316.Closed Areas.
[(a)] The season is closed on migratory game birds on public roads and highways, 
or rights-of-way of public roads and highways, the state-owned riverbeds in 
Dimmit, Uvalde and Zavala Counties, including but not limited to the Nueces and 
Frio rivers, and state wildlife preserves and sanctuaries unless an open season 
is otherwise provided. The open season for the taking of migratory game birds on 
any federal wildlife refuge shall be in accordance with the special hunting 
regulations duly adopted and published by the U.S. Fish and Wildlife Service. 
[(b) The White-Winged Dove Sanctuary Area designated as Sanctuary A is closed to 
all dove hunting only during the Special White- Winged Dove Season in even-
numbered years, and is that area of Texas south of a line extending north from 
the International Bridge at Brownsville along State Highway 415 to U.S. 281; 
thence north and west along U.S. 281 to FM 1015 and south along FM 1015 to the 
International Bridge near Progreso; and that area of Texas south of a line 
extending north along U.S. 281 from the International Bridge at Hidalgo; thence 
north along Spur 115 to FM 1016; thence west and north along FM 1016 to U.S. 83 
at Mission; thence west along U.S. 83 to Loop 374; thence west along Loop 374 to 
FM 2062; thence south along FM 2062 to the entrance of Bentsen State Park; and 
thence along the east boundary of Bentsen State Park to the Rio Grande; and that 
area of Texas south of a line extending north from the Rio Grande at Los Ebanos 
along FM 886 to U.S. 83; thence west along U.S. 83 to FM 755 at Rio Grande City; 
and thence south along FM 755 to the Rio Grande.] 
[(c) The area designated as Sanctuary B is closed to all dove hunting only 
during the Special White-Winged Dove Season in odd- numbered years, and is that 
area of Texas west and south of a line extending north along FM 1015 from the 
International Bridge near Progreso to U.S. 281, and west along U.S. 281 to the 
International Bridge at Hidalgo; and that area of Texas south of a line 
extending north from the Rio Grande along the east and north boundaries of 
Bentsen State Park to its junction with FM 2062; thence along FM 2062 to Loop 
374; thence west along Loop 374 to U.S. 83; thence west along U.S. 83 to FM 886; 
and thence south along FM 886 to the Rio Grande at Los Ebanos; and that area of 
Texas south of a line extending north from the Rio Grande at Rio Grande City 
along FM 755 to U.S. 83; thence west along U.S. 83 to first junction of FM 2098; 
thence north and west along FM 2098 to the Rio Grande.] 

sec.65.317.Zones and Boundaries for Late Season Species.
(a)-(b) (No change.) 
[(c) Sandhill cranes.] 
[(1) Zone A: that portion of Texas lying west of a line beginning at the 
international toll bridge at Laredo, thence northeast along U.S. Highway 81 to 
its junction with Interstate Highway 35 in Laredo, thence north along Interstate 
Highway 35 to its junction with Interstate Highway 10 in San Antonio, thence 
northwest along Interstate Highway 10 to its junction with U.S. Highway 83 at 
Junction, thence north along U.S. Highway 83 to its junction with U.S. Highway 
62, 16 miles north of Childress, thence east along U.S. Highway 62 to the Texas-
Oklahoma state line.] 
[(2) Zone B: That portion of Texas lying within boundaries beginning at the 
junction of Interstate Highway 35 and the Texas- Oklahoma state line, thence 
south along Interstate Highway 35 (following Interstate Highway 35 West through 
Fort Worth) to its junction with Interstate Highway 10 in San Antonio thence 
northwest along Interstate Highway 10 to its junction with U.S. Highway 83 in 
Junction, thence north along U.S. Highway 83 to its junction with U.S. Highway 
62, 16 miles north of Childress, thence east along U.S. Highway 62 to the Texas-
Oklahoma state line, thence eastward along the Texas-Oklahoma state line to 
Interstate Highway 35.] 
[(3) Zone C: that portion of Texas lying within boundaries beginning at the 
international toll bridge at Brownsville, thence north and east along U.S. 
Highway 77 to its junction with U.S. Highway 87 at Victoria, thence eastward 
along U.S. Highway 87 to its junction with Farm Road 616 at Placedo, thence 
north and east along Farm Road 616 to its junction with State Highway 35, thence 
north and east along State Highway 35 to its junction with State Highway 6 at 
Alvin, thence west and north along State Highway 6 to its junction with U.S. 
Highway 290, thence westward along U.S. Highway 290 to its junction with 
Interstate Highway 35 at Austin, thence south along Interstate Highway 35 to its 
junction with U.S. Highway 81 in Laredo, thence southwest along U.S. Highway 81 
to the international toll bridge in Laredo, thence south and east along the 
U.S.-Mexico international boundary to its junction with the U.S. Highway 77 
international toll bridge at Brownsville.
[(d) Woodcock: statewide.] 
[(e) Common snipe (Wilson's snipe or jacksnipe): statewide.] 

sec.65.318.Open Seasons and Bag and Possession Limits - Late Season.
The possession limit for all species listed in this section shall be twice the 
daily bag limit, except for light geese. The possession limit for light geese 
shall be four times the daily bag limit. 
(1) Ducks, mergansers, and coots. The daily bag limit for ducks is six, which 
may include no more than five mallards or Mexican mallards (Mexican duck), only 
two of which may be hens, one mottled duck, three pintails, two redheads, one 
canvasback, and two wood ducks. The daily bag limit for coots is 15. The daily 
bag limit for mergansers is five, which may include no more than one hooded 
merganser. 
(A) High Plains Mallard Management Unit: October <nl>10-13, 1998<ol> [11-14, 
1997], and October <nl>17, 1998<ol> [18, 1997]- January <nl>17, 1999<ol> [18, 
1998]. 
(B) North Zone: October <nl>24<ol> [25]-November <nl> 1, 1998<ol> [2, 1997], and 
November <nl>14, 1998<ol> [15, 1997]- January <nl>17, 1999<ol> [18, 1998]. 
(C) South Zone: October <nl>24<ol> [25]-November <nl> 29, 1998<ol> [30, 1997], 
and December <nl>12, 1998<ol> [13, 1997]- January <nl>17, 1999<ol> [18, 1998]. 
(2) Geese. 
(A) Western Zone. 
(i) Light geese: <nl>October 31, 1998<ol> [November 1, 1997]- February <nl>14, 
1999<ol> [15, 1998]. The daily bag limit for light geese is ten. 
(ii) Dark geese: <nl>October 31, 1998<ol> [November 1, 1997]- February <nl>14, 
1999<ol> [15, 1998]. The daily bag limit for dark geese is five, which may not 
include more than four Canada geese and one white-fronted goose. 
(B) Eastern Zone. 
(i) Light geese: November <nl>7, 1998<ol> [1, 1997]-February <nl>21, 1999<ol> 
[15, 1998]. The daily bag limit for light geese is ten. 
(ii) Dark geese: <nl>October 24, 1998 - January 17, 1999 <ol> [November 1, 1997-
January 25, 1998]. The daily bag limit for dark geese is two, which may not 
include more than one Canada goose and one white-fronted goose. [During the 
period January 19- 25, 1998, the daily bag limit is one Canada goose and one 
white- fronted goose, or two Canada geese.] 
[(3) Sandhill cranes. A special permit, issued free of charge by the Texas Parks 
and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744, is 
required of any person to hunt, shoot, or kill sandhill cranes in areas where an 
open season is provided under this proclamation. Permits will be issued on an 
impartial basis with no limitation on the number of permits that may be issued. 
The daily bag limit is three.] 
[(A) Zone A: November 8, 1997-February 8, 1998.] 
[(B) Zone B: November 29, 1997-February 8, 1998.] 
[(C) Zone C: January 3, 1998-February 8, 1998.
[(4) Woodcock: December 18, 1997-January 31, 1998. The daily bag limit is 
three.] 
[(5) Common snipe (Wilson's snipe or jacksnipe): October 25, 1997-February 8, 
1998. The daily bag limit is eight.
<nl>(3)<ol> [(6)] Special Youth-Only Season. There shall be a special youth-only 
duck season during which the hunting, taking, and possession of ducks, 
mergansers, and coots is restricted to licensed hunters 15 years of age and 
younger accompanied by a person 18 years of age or older. Bag and possession 
limits in any given zone during the season established by this paragraph shall 
be as provided for that zone by paragraph (1) of this section. Season dates are 
as follows: 
(A) High Plains Mallard Management Unit: October <nl>3, 1998 <ol> [4, 1997]; 
(B) North Zone: October <nl>17, 1998<ol> [18, 1997]; and 
(C) South Zone: October 17, 1998 [18, 1997].

sec.65.319.Extended Falconry Season - Early Season Species.
(a) It is lawful to take the species of migratory birds listed in this section 
by means of falconry during the following Extended Falconry Seasons: 
(1) mourning doves and white-winged doves: November <nl> 9<ol> [8]-December 
<nl>25, 1998<ol> [24, 1997]; and 
(2) rails and gallinules: October <nl>1<ol> [2]-November <nl>6, 1998<ol> [7, 
1997]. 
<nl>(3)<ol> <nl>woodcock: November 24-December 17, 1998, and February 1- March 
10, 1999. <ol>
(b) (No change.)

sec.65.320.Extended Falconry Season - Late Season Species.
(a) It is lawful to take the species of migratory birds listed in this section 
by means of falconry during the following Extended Falconry Seasons<nl>.<ol>[:] 
[(1)] ducks, coots, and mergansers: 
<nl>(1)<ol> (A) High Plains Mallard Management Unit: no extended falconry 
season; and 
<nl>(2)<ol> (B) Remainder of the state: January <nl>18<ol> [19, 1998]- February 
<nl>9, 1999.<ol> [10, 1998; and] 
[(2) woodcock: November 24-December 17, 1997, and February 1, 1998-March 10, 
1998.] 
(b) The daily bag and possession limits for migratory game birds under this 
section shall not exceed three and six birds, respectively, singly or in the 
aggregate. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 20, 1998.
TRD-9805488
Bill Harvey
Regulatory Coordinator
Texas Parks and Wildlife Department
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 389-4775

SUBCHAPTER O.Commercial Nongame Permits
31 TAC sec.sec.65.325-65.332
The Texas Parks and Wildlife Department proposes new sec.sec.65.325-65.332, 
concerning permits for the sale or possession of nongame wildlife. The new rules 
are necessary to allow the department to monitor the impact of commercial trade 
and collection activities on the state's nongame wildlife populations in order 
to determine if there are nongame species in need of management. The new rules 
will function by requiring persons engaged in the collection or sale of nongame 
wildlife to possess a permit and comply with reporting requirements. 
Robert Macdonald, Wildlife Division regulations coordinator, has determined that 
for each of the first five years that the new rules as proposed are in effect, 
there will be no additional fiscal implications to state or local governments as 
a result of enforcing or administering the new rules. 
Mr. Macdonald also has determined that for each of the first five years the new 
rules as proposed are in effect, the public benefit anticipated as a result of 
enforcing the rules as proposed will be the acquisition of data that will 
provide a basis for the management of the nongame wildlife of the state and 
allow the department to determine what, if any, additional regulatory measures 
are needed. 
There will be an effect on small businesses and additional economic costs to 
persons required to comply with the rules as proposed; specifically, the $15 
cost of acquiring a resident commercial collection permit ($50 nonresident), or 
the $50 cost of acquiring a resident nongame dealer permit ($200 nonresident). 
The cost of compliance for small businesses is the same as the cost of 
compliance for the largest business affected by the rule as proposed. 
The department has not filed a local impact statement with the Texas Workforce 
Commission as required by Government Code, sec.2001.022, as this agency has 
determined that the rules as proposed will not impact local economies. The 
department has determined that there will not be a taking of private real 
property, as defined by Government Code, Chapter 2007, as a result of the 
proposed new sections. 
Comments on the proposed rules may be submitted to Matt Wagner, Texas Parks and 
Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4396 
or 1-800-792-1112. 
The new sections are proposed under Parks and Wildlife Code, Chapter 67, which 
provides the commission with authority to establish any limits on the take, 
possession, propagation, transportation, importation, exportation, sale, or 
offering for sale of nongame fish or wildlife. 
The new sections affect Parks and Wildlife Code, Chapter 67.

sec.65.325.Applicability.
This subchapter applies to the nongame wildlife listed in sec.65.331 of this 
title (relating to Affected Species), living or dead, including parts of nongame 
wildlife and captive-bred nongame wildlife, but does not apply to bobcat pelts 
or processed products. 

sec.65.326.Definitions.
The following words and terms, when used in this subchapter, shall have the 
following meanings, unless the context clearly indicates otherwise. All other 
words and terms shall have the meanings assigned by the Parks and Wildlife Code 
or regulatory definitions adopted under the authority of Parks and Wildlife 
Code. 
(1) Captive-bred--Any wildlife born in captivity from parents held in captivity. 
(2) Commercial activity--The sale, offer for sale, exchange or barter of nongame 
wildlife. 
(3) Resale--Any transaction or activity in which a person purchases nongame 
wildlife or otherwise acquires nongame wildlife for a consideration and 
subsequently transfers or delivers the same nongame wildlife to any person in 
exchange for compensation or remuneration of any kind. 
(4) Processed product--Nongame wildlife or parts of nongame wildlife that have 
been treated or prepared, by means other than refrigeration or freezing, to 
prevent decomposition.

sec.65.327.Permit Required.
(a) Except as provided in subsection (d) of this section, no person in this 
state may engage in a commercial activity involving nongame wildlife, or possess 
more than ten specimens of nongame wildlife, unless that person possesses a 
valid commercial collection permit or a valid nongame dealer permit issued by 
the department, subject to the conditions provided in sec.65.328 of this 
subchapter (relating to Permit Restrictions). 
(b) No person in this state may resell nongame wildlife unless that person 
possesses a valid nongame dealer permit by the department. 
(c) No person may transport or ship nongame wildlife out of this state, or cause 
such transport or shipment, for the purpose of sale unless that person possesses 
a valid nongame dealer permit issued by the department.
(d) This subchapter does not apply to: 
(1) persons purchasing, possessing, or selling processed products;
(2) teachers at accredited primary or secondary educational institutions, 
provided that the nongame wildlife is possessed solely for educational purposes 
and is not sold or transferred to another person for the purpose of sale; 
(3) persons or establishments selling nongame wildlife for and ready for 
immediate consumption in individual portion servings, and which are subject to 
limited sales or use tax; 
(4) persons 16 years of age or younger, provided the person is not engaged in a 
commercial activity; or 
(5) persons holding a valid bait dealer's license who possess aquatic animal 
life listed in this subchapter. 
(e) A permit required by this subchapter shall be possessed on the person of the 
permittee during any activity governed by this subchapter.
(f) This subchapter does not relieve any person of the obligation to possess an 
appropriate hunting license for any activity involving the take of nongame 
wildlife. 

sec.65.328.Permit Restrictions.
(a) A person possessing a valid commercial collection permit:
(1) may sell nongame wildlife lawfully collected by that person; and 
(2) may buy lawfully collected nongame wildlife from any person lawfully 
authorized to sell nongame wildlife; but 
(3) may not resell nongame wildlife unless the person possesses a valid nongame 
dealer's permit. 
(b) A person possessing a valid nongame dealer permit may resell lawfully 
purchased nongame wildlife to anyone. 

sec.65.329.Permit Application.
(a) An applicant for a dealer's permit under this subchapter shall submit to the 
department a completed application on a form supplied by the department, 
accompanied by the nonrefundable fee specified in Chapter 53 of this title 
(relating to Finance). 
(b) The department reserves the right to refuse permit issuance to any person 
finally convicted of any violation of Parks and Wildlife Code during the five-
year period immediately prior to an application for a permit under this 
subchapter. This subsection does not apply to convictions under Parks and 
Wildlife Code, Chapter 31. 
(c) The department shall not issue a permit to any person who has not complied 
with the applicable requirements of sec.65.330 of this title (relating to 
Reporting Requirements). 
(d) Permits shall be issued to named individuals only, resident or nonresident 
as applicable, and shall not be issued in the name of any firm, organization, or 
institution. 

sec.65.330.Record and Reporting Requirements.
(a) A person possessing a commercial collection permit shall:
(1) maintain and possess upon their person during any collection activities a 
daily collection log indicating the date, location, and number of specimens of 
each species collected and/or possessed during the period of validity of the 
permit, which shall be presented upon demand to a game warden of the department; 
and 
(2) complete and submit to the department a quarterly report, accompanied by the 
permittee's collection log, by the 15th of September, December, March, and June 
of each year. 
(b) A person possessing a nongame dealer permit shall: 
(1) maintain and make available to a game warden of the department upon demand a 
current daily record of all purchases and sales; 
(2) maintain and make available to a game warden of the department upon demand 
an invoice or receipt identifying the source or origin of each specimen of 
nongame wildlife in possession; and 
(3) complete and submit to the department a quarterly report by the 15th of 
September, December, March, and June of each year.
(c) All records required by this section shall be retained and kept available 
for inspection for a period of one year following the period of validity of the 
permit under which they are required to be kept. 

sec.65.331.Affected Species.
The following species are subject to the provisions of this subchapter.
Figure: 31 TAC sec.65.331 

sec.65.332.Violations and Penalties.
A person who violates any provision of this subchapter commits an offense and is 
subject to the penalties provided by Parks and Wildlife Code, sec.67.005. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 20, 1998.
TRD-9805484
Bill Harvey
Regulatory Coordinator
Texas Parks and Wildlife Department
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 389-4775

PART X. Texas Water Development Board
CHAPTER 357.Regional Water Planning Guidelines
31 TAC sec.sec.357.5, 357.12
The Texas Water Development Board proposes amendments to sec.357.5 relating to 
Guidelines for Development of Regional Water Plans, and to sec.357.12 relating 
to Notice and Public Participation. The proposed amendments would amend notice 
requirements of regional water planning groups (RWPGs). 
The proposed amendment to sec.357.5(h) would modify the requirement that a RWPG 
provide notice of each of its meetings to all holders of water rights, contracts 
and option contracts in a special water resource. Under the proposed amendment, 
each RWPG would be required to initially notice all rights holders, and continue 
to provide notice of each meeting only if the right holder requests continued 
notice. This will allow the notice to be provided only to those who desire, and 
will further allow a RWPG to reduce its work and cost by providing notice in 
other than mailed form if the right holder indicates such receipt is acceptable. 
The proposed amendment to sec.357.12(c)(2) will eliminate the requirement that a 
RWPG and subgroup publish notice of their meetings in the Texas Register. The 
practical effect of this requirement is to extend the deadline by which an 
agenda must be developed from the 72 hours required by the Texas Open Meetings 
Act to a minimum of 10 days before the meeting. Since the initial development of 
the rules, the board has developed a method for routinely posting each RWPG and 
subgroup meeting on the Board's Internet home page, thereby providing a better 
alternative for statewide distribution of the meetings than the Texas Register.
Ms. Patricia Todd, Director of Accounting and Finance, has determined that for 
the first five-year period these sections are in effect there will be no fiscal 
implications on state government as a result of enforcement and administration 
of the sections. There should be a reduction in cost for local government but it 
is not possible to estimate cost reductions without first knowing the number of 
holders of interest which decline notice or choose less costly forms of notice, 
or the number of meetings to be held. 
Ms. Todd has also determined that for the first five years the sections as 
proposed are in effect the public benefit anticipated as a result of enforcing 
the sections will be to ensure public receipt of notice regarding regional water 
planning group meetings while providing more streamline and cost effective 
methods of providing such notice. Ms. Todd has determined there will be no 
economic costs to small businesses or individuals required to comply with the 
sections as proposed. 
Comments on the proposed amendments will be accepted for 30 days following 
publication and may be submitted to Suzanne Schwartz, 512/463-7981, Texas Water 
Development Board, P.O. Box 13231, Austin, Texas, 78711-3231. 
The amendments are proposed under the authority granted in Texas Water Code, 
sec.6.101, which provides the board with the authority to adopt rules necessary 
to carry our its powers and duties under the Texas Water Code and laws of Texas, 
and under the authority of Texas Water Code, sec.16.053, which requires the 
board to develop rules and guidelines: to provide procedures for adoption of 
regional water plans by regional water planning groups and approval of regional 
water plans by the board, to govern procedures to be followed in carrying out 
the responsibilities in Texas Water Code, sec.16.053. The statutory provisions 
affected by the amendments are Texas Water Code, sec.16.051 and sec.16.053. 

sec.357.5 Guidelines for Development of Regional Water Plans. 
(a) - (g) (No change.) 
(h) Protecting rights to special water resources. When developing a water plan 
that involves a special water resource, defined in subsection (g) of this 
section, the regional water planning group for the regional water planning area 
which contains the special water resource shall protect the water rights, water 
supply contracts, and water supply option agreements associated with the special 
water resource so that supplies obligated to meet demands outside the regional 
water planning areas shall not be impacted. Any plans that could impact the 
water rights, water supply contracts, or water supply option agreements 
associated with the special water resource shall be based only on potential 
adjustments to the water rights, water supply contracts or option agreements by 
those entities holding interests in such water rights, water supply contract, or 
water supply option agreements. Any amendments will require the eventual consent 
of the owner. <nl>Each regional water planning group and subgroup shall provide 
an initial notice to all holders of interests in water rights, water supply 
contracts, or option agreements in the special water resource in which such 
holders are provided the option of notifying the regional water planning group 
or subgroup of whether the holder wishes to receive all future notices of 
regional water planning group or subgroup meetings. The regional water planning 
group or subgroup may provide options for such holders to choose that delivery 
of future notice may be made by regular mail, electronic mail, or facsimile 
transmission. <ol> All holders of interests in water rights, water supply 
contracts, or option agreements in the special water resource shall be provided 
notice of <nl>and<ol>[ll meetings of the regional water planning group or 
subgroups, and shall be provided] an opportunity to comment on the scope of work 
affecting the special water resource, and on the proposed regional water plan, 
with such comments being submitted to the executive administrator with submittal 
of the adopted regional water plan. 
(i)-(m) (No change.)

sec.357.12.Notice and Public Participation. 
(a)- (b) (No change.) 
(c) Regional water planning groups and regional water planning subgroups shall: 
(1) conduct all business in a meeting posted and held in accordance with the 
Texas Open Meetings Act with a copy of all materials presented or discussed 
available for public inspection prior to and following the meeting; and 
(2) provide notice of regional water planning group and subregional water 
planning meetings [in the Texas Register and] to persons who requested in 
writing receipt of such notice. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 16, 1998.
TRD-9805346
Suzanne Schwartz
General Counsel
Texas Water Development Board
Proposed date of adoption: June 18, 1998
For further information, please call: (512) 463-7981

CHAPTER 363.Financial Assistance Programs
The Texas Water Development Board (board) proposes amendments to 
sec.sec.363.202, 363.207 and sec.363.208, the repeal of sec.363.206, and new 
sec.363.206 and sec.363.226, concerning Financial Assistance Programs. 
Amendments to sec.sec.363.202, 363.207 and sec.363.208, the repeal of 
sec.363.206, and new sec.363.206 provide for a funding system based on priority 
rating of applicant's projects. The rating system is based on critical water 
quality and public health factors. Amendments to sec.363.202 and new sec.363.206 
and sec.363.226 provide for the new Hardship Grants Program for Rural 
Communities. Proposed amendments to sec.363.202 would add definitions for 
"estuary management plan," "estuary management project," "hardship grants 
program for rural communities," "nonpoint source pollution plan," "nonpoint 
source project," "rural hardship community," and "State of Texas 303(d) Report." 
Amendments to sec.363.202 are also proposed to number definitions in accordance 
with new Texas Register requirements. 
Proposed amendments to sec.363.206 include repeal and new sec.363.206, Criteria 
and Methods for Distribution of Funds, to provide for the distribution of 
available Clean Water State Revolving Funds (CWSRF) to critical projects 
designated for funding pursuant to the intended use plan. The section would 
provide for equitable distribution of limited funds by creating eight categories 
among which the funds will be distributed. 
Proposed amendments to sec.363.207, Intended Use Plan, would add to the list of 
required project information any other information that may be requested by the 
executive administrator. The listing of projects by alphabetical order would be 
deleted and the section would reflect the projected shortage of available funds 
by requiring applicants to submit all information no later than July 1 of each 
fiscal year in order to be included in the draft intended use plan. Applicants 
which submit information after the July 1 deadline may still have their projects 
added to the intended use plan by appropriate category but at a lower ranking 
order than those applicants submitting timely information. Proposed amendments 
to sec.363.208, Rating Process, would clarify a term and broaden the provision 
for giving a priority rating point for enforcement orders by eliminating the 
requirement for initiation of construction within eighteen months. The 
amendments would replace existing subparagraphs (H) through (L) with a point 
system based on relative sensitivity of stream segments, and, for fiscal year 
1999 only, projects which received an approved Preliminary Eligibility 
Determination from the board. The section would further adds tie-breakers for 
applicants lacking centralized wastewater treatment or collection systems. New 
sec.363.226, Rural Hardship Grants, would enable the board to implement a new 
federal assistance program which provides for costs that are eligible for grant 
assistance if the board determines that the project will improve public health 
or reduce an environmental risk. Grants would be administered through grant 
agreements with the applicant. There are no administrative cost recovery charges 
associated with grant awards. 
Ms. Patricia Todd, Director of Accounting and Finance, has determined that for 
the first five-year period these sections are in effect the fiscal implications 
on state government as a result of enforcement and administration of the 
sections will be $11,785 for each of years 1998 through 2002 for a partial full-
time equivalent employee required for administration. However, the estimated 
additional cost does not include any cost of living adjustment. There will be no 
fiscal implication for local government as a result of enforcing the sections. 
Ms. Todd has also determined that for the first five years the sections as 
proposed are in effect the public benefit anticipated as a result of enforcing 
the sections will be an improved management plan for CWSRF funds for funding 
critical wastewater projects, nonpoint source pollution and bays and estuaries 
projects, and a new program to assist rural hardship communities. Ms. Todd has 
determined there will be no economic costs to small businesses or individuals 
required to comply with the sections as proposed. 
Comments on the proposed amendments will be accepted for 30 days following 
publication and may be submitted to Gail L. Allan, 512/463-7804, Texas Water 
Development Board, P.O. Box 13231, Austin, Texas, 78711-3231. 

SUBCHAPTER B.State Water Pollution Control Revolving Fund
Division I. Introductory Provisions
31 TAC sec.sec.363.202, 363.206-363.208
The amendments and new section are proposed under the authority of the Texas 
Water Code, sec.6.101 which provide the Texas Water Development Board with the 
authority to adopt rules necessary to carry out the powers and duties in the 
Water Code and other laws of the State. 
The statutory provisions affected by the amendments and new section are Texas 
Water Code, Chapter 15, Subchapter J, sec.sec.15.601, 15.602, and 15.603. 

sec.363.202. Definitions.
Words and terms used in this subchapter shall have the following meanings, 
unless the context clearly indicates otherwise. Words defined in the Texas Water 
Code Chapters 15, 16 or 17, and not defined here shall have the meanings 
provided by the appropriate Texas Water Code chapter. 
<nl>(1)<ol> Act - The Federal Water Pollution Control Act, as amended, 33 USC 
1251 et. seq. 
<nl>(2)<ol> Administrative cost recovery fund - An operating fund to finance the 
administration of the SRF program, to be held outside the state treasury and 
separate from the SRF Program Account. 
<nl>(3)<ol> Administrative costs - All reasonable and necessary costs of 
administering any aspect of the SRF program, including the cost of servicing 
debt obligations of recipients of SRF financial assistance.
<nl>(4)<ol> Alternative technology - Proven wastewater treatment processes and 
techniques which provide for the reclaiming and reuse of water, productively 
recycle wastewater constituents or otherwise eliminate the discharge of 
pollutants, or recover energy. Specifically, alternative technology includes 
land application of effluent and sludge; aquifer recharge; aquaculture; direct 
reuse (nonpotable); horticulture; revegetation of disturbed land; containment 
ponds; sludge composting and drying prior to land application; self-sustaining 
incineration; methane recovery; individual and onsite systems; and small 
diameter pressure and vacuum sewers and small diameter gravity sewers carrying 
partially or fully treated wastewater. 
<nl>(5)<ol> <nl> Application for assistance - All the information required for 
submittal in the following sections: sec.363.12 of this title (relating to 
General, Legal and Fiscal Information), sec.363.222 of this title (relating to 
Required SRF Engineering Feasibility report) and sec.363.223 of this title 
(relating to Required Environmental Review and Determinations). <ol>
<nl>(6)<ol> Environmental determination - A finding by the executive 
administrator regarding the environmental soundness of a proposed project. 
<nl>(7)<ol> Environmental assessment - A written analysis prepared by the 
applicant describing the potential environmental impacts of a proposed project, 
sufficient in scope to enable the executive administrator to make an 
environmental determination. 
<nl>(8)<ol> EPA - The Environmental Protection Agency.
<nl>(9)<ol> <nl>Estuary management plan - A plan for the conservation and 
management of an estuary of national significance as described in the Act, 
sec.320. <ol>
<nl>(10)<ol> <nl>Estuary management project - A project pursuant to an estuary 
management plan. <ol>
<nl>(11)<ol> <nl> Hardship grants program for rural communities - The program 
established by the federal Omnibus Consolidated Recessions and Appropriations 
Act of 1996 (Public Law 104-403). <ol>
<nl>(12)<ol> <nl>Nonpoint source pollution plan - A plan for managing nonpoint 
source pollution as described in the Act, sec.319. <ol>
<nl>(13)<ol> <nl>Nonpoint source project - A project pursuant to a nonpoint 
source pollution management plan. <ol>
<nl>(14)<ol> <nl> Rural hardship community - A community consisting of not more 
than 3,000 residents that is not a remote area within the corporate boundaries 
of a larger city and that: <ol>
<nl>(A)<ol> <nl> is lacking centralized wastewater treatment or collection 
systems or is in need of improvements to onsite wastewater treatment systems; 
<ol>
<nl>(B)<ol> <nl> has an average annual per capita income equal to or less than 
80% of the national annual per capita income as determined by the latest 
decennial census; and <ol>
<nl>(C)<ol> <nl>has an unemployment rate that exceeds by at least one percentage 
point the most recently reported average yearly national unemployment rate. <ol>
<nl>(15)<ol> SRF - The state water pollution control revolving fund, created 
pursuant to the Texas Water Code, Subchapter J, Chapter 15. 
<nl>(16)<ol> SRF program account - The program account is an account in the SRF 
created pursuant to a resolution of the board in issuing SRF bonds and is used, 
pursuant to such bond resolution(s), for the purpose of providing financial 
assistance to political subdivisions for construction of treatment works and, if 
needed, to pay rebate amounts to the federal government.
<nl>(17)<ol> <nl>"State of Texas 303(d) Report" - The report, prepared 
biennially by the commission, required by the Act, sec.303(d).<ol> 
<nl>(18)<ol> Treatment works - The meaning established in the Act, sec.212, 
shall apply for projects funded from the state water pollution control revolving 
fund. 

sec.363.206.Criteria and Methods for Distribution of Funds. 
(a) After the executive administrator determines the amount of funds available 
for projects for a fiscal year, the funds will be applied to the list of 
projects designated to receive funding in the intended use plan. The list will 
be divided into eight categories as follows: 
(1) Category A, which shall consist of projects proposed by applicants with 
existing populations of 3,000 or fewer; 
(2) Category B, which shall consist of projects proposed by applicants with 
existing populations from 3,001 to 10,000; 
(3) Category C, which shall consist of projects proposed by applicants with 
existing populations from 10,001 to 25,000; 
(4) Category D, which shall consist of projects proposed by applicants with 
existing populations from 25,001 to 100,000; 
(5) Category E, which shall consist of projects proposed by applicants with 
existing populations from 100,001 to 500,000; 
(6) Category F, which shall consist of projects proposed by applicants with 
existing populations of 500,001 or greater; 
(7) Category G, which shall consist of projects proposed by applicants for rural 
hardship communities; and 
(8) Category H, which shall consist of nonpoint source projects or estuary 
management projects. 
(b) Projects for Categories A through G shall be listed in priority ranking 
order with funds required and totaled by category. Projects in Category H shall 
be listed in alphabetical order according to the name of the applicant with 
funds required and totaled for the category. Project costs will be based on cost 
estimates, acceptable to the executive administrator, contained in the intended 
use plan solicitation described in sec.363.207 of this title (relating to 
Intended Use Plan) used to establish the project list. Funds required by all 
projects in each category will then be totaled. Except for Category G, a 
percentage of the total funds required by each category shall be computed based 
upon the ratio of funds required by each category to the funds required by all 
categories. The portion of the available funds shall be assigned to the 
categories based on this computed percentage, provided that no category will be 
assigned less than 5.0% of the total funds available. The funds assigned to 
Category G shall be equal to the amount of federal grants available for the 
fiscal year plus an equal amount of SRF loan funds. 
(c) After population class percentages have been assigned and available funds 
distributed among the categories, a line shall be drawn within each category not 
to exceed the available funds to each category. 
(d) Projects above the funding line shall be eligible for assistance. After the 
funding line is drawn, the executive administrator shall notify in writing all 
applicants above the funding line of the availability of funds for the fiscal 
year and shall invite the submittal of applications. Applicants will be allowed 
until January 1 of the fiscal year to submit applications for assistance, and 
will be allowed until February 28 of the fiscal year to receive a loan 
commitment. 
(e) If, at any time during this period prior to January 1, an applicant above 
the funding line submits written notification that it does not intend to submit 
an application, or if additional funds become available for assistance, the 
funding line within each category may be moved downward in priority order to 
accommodate additional projects which would utilize the funds that would 
otherwise not be committed. The executive administrator will notify such 
additional applicants in writing and will invite the submittal of applications. 
Applicants receiving such notice will be allowed until April 1 of the fiscal 
year to submit applications for assistance, and will be allowed until May 31 of 
the fiscal year to receive a loan commitment. 
(f) No later than March 1 of the fiscal year, if all available funds are not 
committed, the executive administrator will return any incomplete applications 
and move all projects for which no applications or incomplete applications were 
submitted to the bottom of the prioritized list within each category, where they 
will be placed in priority order. The funding line will be redrawn within each 
category to utilize the funds remaining within the category. 
(g) Projects above the funding line shall be eligible for assistance. After the 
funding line is drawn, the executive administrator shall notify in writing all 
applicants above the funding line of the availability of funds for the fiscal 
year and shall invite the submittal of applications. Applicants will be allowed 
until April 1 of the fiscal year to submit applications for assistance, and will 
be allowed until May 31 of the fiscal year to receive a loan commitment. 
(h) If, at any time during this period prior to April 1, an applicant above the 
funding line submits written notification that it does not intend to submit an 
application, or if additional funds become available for assistance, the funding 
line within each category may be moved downward in priority order to accommodate 
additional projects which would utilize the funds that would otherwise not be 
committed. The executive administrator will notify such additional applicants in 
writing and will invite the submittal of applications. Applicants receiving such 
notice will be allowed until July 1 of the fiscal year to submit applications 
for assistance, and will be allowed until August 31 of the fiscal year to 
receive a loan commitment. 
(i) No later than June 1 of the fiscal year, if all available funds are not 
committed, the executive administrator will return any incomplete applications 
and move all projects for which no applications or incomplete applications were 
submitted to the bottom of the prioritized list within each category, where they 
will be placed in priority order. The funding line will be redrawn within each 
category to utilize the funds remaining within the category. 
(j) Projects above the funding line shall be eligible for assistance. After the 
funding line is drawn, the executive administrator shall notify in writing all 
applicants above the funding line of the availability of funds for the fiscal 
year and shall invite the submittal of applications. Applicants will be allowed 
until July 1 of the fiscal year to submit applications for assistance, and will 
be allowed until August 31 of the fiscal year to receive a loan commitment. 
(k) If funds are available after the executive administrator is able to make a 
determination that all applicants in each category have had the opportunity to 
be funded, the remaining funds will be made available to the other categories. 
The remaining funds will be pooled with any left over from the other categories 
and made available to Category A. If no applicants in Category A are able to 
utilize the funds, then the funds will be made available to Category B. If no 
applicants in Category B are able to utilize the funds, then the funds will be 
made available to Category C. If no applicants in Category C are able to utilize 
the funds, then the funds will be made available to Category D. If no applicants 
in Category D are able to utilize the funds, then the funds will be made 
available to Category E. If no applicants in Category E are able to utilize the 
funds, then the funds will be made available to Category F. 
(l) Loan assistance will not exceed the cost estimate in the intended use plan 
without board approval. In the event the cost of a project exceeds the funds 
available, the applicant may seek additional funds from other appropriate board 
programs.
(m) Regardless of the provisions of subsections (c) through (k) of this section, 
applications for assistance for Category H, nonpoint source or estuary projects 
will be developed as follows. 
(1) After funds have been assigned to Category H, the executive administrator 
will notify all applicants with projects included in the intended use plan of 
the availability of funds, and will invite the submittal of applications. 
Applicants will be allowed until January 1 of the fiscal year to submit 
applications and will be allowed until February 28 of the fiscal year to receive 
a loan commitment. 
(2) Applications in Category H will be funded on a first come, first served 
basis until the available funds have been exhausted. 
(3) If, on the first business day of the month, the total amount of funds 
required to fund all applications which are complete and ready for scheduling 
for board action exceeds the amount of funds available, the applications will be 
considered in the order of the submittal date of the complete application. 
(4) If, during any month, the amount of funds required to fund a particular 
application are insufficient to completely fund the application, the applicant 
may seek additional funds from other appropriate board programs.
(5) If any funds remain in this category after February 28 of the fiscal year, 
and if any projects have been added to category after the July 1 deadline for 
including projects in the intended use plan, the executive administrator will 
notify such applicants of the availability of funds and invite the submittal of 
applications. Applicants will be allowed until April 1 of the fiscal year to 
submit an application and will be allowed until May 31 of the fiscal year to 
receive a loan commitment. 
(n) If there is a shortage of funds within a category, no single applicant may 
receive more than 30% of the funds available for that category for a fiscal 
year. 

sec.363.207.Intended Use Plan. 
(a) (No Change.)
(b) The process for listing projects in the intended use plan[,] will be as 
follows. 
(1) On or before April 1 each year the executive administrator will solicit 
project information from entities desiring to <nl>receive funding commitments 
during the next fiscal year<ol> [have their projects placed] on the <nl>basis of 
that<ol> [subsequent] year's intended use plan. The required project information 
will consist of: 
(A)-(C) (No Change.)
(D) an estimated [project ]schedule <nl>for planning, design and construction of 
the proposed project<ol>; [and] 
(E) a statement as to whether the applicant is under enforcement by EPA or the 
commission<nl>; and<ol> 
<nl>(F)<ol> <nl>such other information as may be requested by the executive 
administrator. <ol>
(2) The required information must be submitted not later than July 1 to be 
included in the draft intended use plan. <nl>Applicants which do not submit this 
information by July 1 may have their projects added to the Intended Use Plan. 
Such projects will be added to the appropriate population category list in order 
of date of submission and below those in ranking order rather than in accordance 
with sec.363.206 of this title (relating to Criteria and Methods for 
Distribution of Funds).<ol>[Projects will be listed in alphabetical order.] 
(3) After a public hearing, the intended use plan will be presented [to the 
board] for consideration <nl>to the board <ol> at a regularly scheduled meeting. 
[(c) Applicants requesting funding which are not listed on an intended use plan, 
but wish to proceed prior to the next year's intended use plan, will be added to 
the current intended use plan and considered for financial assistance from the 
SRF. These projects will be considered for funding in the same manner as listed 
projects.] 

sec.363.208.Rating Process. 
The rating process is designed to achieve optimum water quality management, 
consistent with public health and water quality goals, and to give consideration 
to the varying populations of the state's political subdivisions. 
(1) In situations where the application includes line work and sewage treatment 
plant work, and/or includes more than one sewage treatment plant, the 
application will be given the rating calculated for the principal project, type 
of work or the single facility which comprises the majority of the cost. The 
criteria used to rate applications and the number of points assignable to each 
criterion shall be as follows. 
(A) Applications in which the principal project is a sewage treatment plant or 
lines <nl>where the sewage treatment plant is<ol> [which are] at 90% or greater 
of <nl>its<ol> [their] rated capacity <nl>for three consecutive months of the 
past 12 months <ol>as reported to the commission will receive 3 points. 
(B) Applications in which the principal project is a sewage treatment plant or 
lines <nl>where the sewage treatment plant is at <ol>[which are] 75% or greater 
but less than 90% of <nl>its<ol> [their] rated capacity <nl>for three 
consecutive months of the past 12 months <ol>as reported to the commission will 
receive 2 points. 
(C) Applications in which the principal project is a sewage treatment plant or 
lines <nl>where the sewage treatment plant is at <ol>[which are] 65% or greater 
but less than 75% of <nl>its<ol> [their] rated capacity <nl>for three 
consecutive months of the past 12 months <ol>as reported to the commission will 
receive 1.5 points.
(D) Applications in which the principal project is under a schedule imposed by a 
court order, EPA administrative order, or commission enforcement order [which 
requires initiation of construction within 18 months ]will receive 1 point. 
(E) Applications in which the principal project is required to meet a higher 
level of treatment than required by their current permit or in which the 
applicant elects not to discharge in order to avoid higher levels of treatment 
will receive 1.5 points. 
(F) Applications in which the principal project will provide service to areas 
which have no <nl>centralized<ol> sewerage systems and which have documented 
public health problems will receive 2 points. 
(G) Applicants which are proposing to construct nonconventional, innovative, or 
alternative treatment or collection systems will receive 1 point. 
<nl>(H)<ol> <nl> Applications in which the principal project impacts stream 
segments designated as "High Priority," as identified in the current approved 
"State of Texas 303(d) Report," and where the proposed project will directly or 
indirectly mitigate the identified problem will receive 4 points. <ol>
<nl>(I)<ol> <nl>Applications in which the principal project impacts stream 
segments designated as "Medium Priority," as identified in the current approved 
"State of Texas 303(d) Report," and where the proposed project will directly or 
indirectly mitigate the identified problem will receive 3 points. <ol>
<nl>(J)<ol> <nl>Applications in which the principal project impacts stream 
segments designated as "Low Priority," as identified in the current approved 
"State of Texas 303(d) Report," and where the proposed project will directly or 
indirectly mitigate the identified problem will receive 2 points. <ol>
<nl>(K)<ol> <nl>Applications in which the principal project impacts stream 
segments designated as "Threatened or Under Study," as identified in the current 
approved "State of Texas 303(d) Report," and where the proposed project will 
directly or indirectly mitigate the identified problem will receive 1 point. 
<ol>
<nl>(L)<ol> <nl>For projects applying for commitment of funds in fiscal year 
1999 only, any applicant who has obtained a preliminary eligibility 
determination under sec.363.224 of this title (relating to Capital Improvements 
Plan Option) shall receive 1 point for all work that has received approval of 
plans and specifications prior to September 1, 1998. <ol>
[(H) Applicants having jurisdiction over a population of 1,000 or less will 
receive 3 points.] 
[(I) Applicants having jurisdiction over a population greater than 1,000 but 
less than 2,500 will receive 2.5 points.
[(J) Applicants having jurisdiction over a population of 2,500 or greater, but 
less than 10,000 will receive 2 points.
[(K) Applicants having jurisdiction over a population of 10,000 or greater, but 
less than 100,000 will receive 1.5 points.
[(L) Applicants having jurisdiction over a population of 100,000 or greater will 
receive 1 point.] 
(M) Applicants whose proposed project will create or upgrade a system that 
qualifies as a regional <nl>facility<ol> [system] under the definition of Texas 
Water Code sec.17.001(24) will receive 1 point.
(2) The rating score will be the sum of the points assigned to the application 
under all criteria which are applicable to the application. 
(3) In the event more than one <nl>project as listed in the intended use plan 
<ol>[applicant] receives the same rating score, funding will first be made 
available <nl>for the project in which the<ol> [to the applicant(s) whose] 
sewage treatment <nl>plant is <ol> [plant(s) or lines are] at the greatest 
percentage of <nl> its rated capacity for three consecutive months of the past 
12 months as reported to the commission. In the event applicants lacking 
centralized wastewater treatment or collection systems receive the same rating 
score, funding will first be made available to the applicant with the lowest 
annual per capita income. In the event an applicant lacking centralized 
wastewater treatment or collection and an applicant with centralized wastewater 
treatment receive the same rating score, funding will first be made available to 
the applicant lacking centralized wastewater treatment and collection<ol>[their 
rated capacities]. 
(4) Where the existing treatment facilities will be abandoned and sewage 
diverted to a different location, the diversion line will be given the rating 
score of the treatment facilities to be abandoned. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 16, 1998.
TRD-9805344
Suzanne Schwartz
General Counsel
Texas Water Development Board
Proposed date of adoption: June 18, 1998
For further information, please call: (512) 463-7981

31 TAC sec.363.206
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Water 
Development Board or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the authority of the Texas Water Code, sec.6.101 
which provide the Texas Water Development Board with the authority to adopt 
rules necessary to carry out the powers and duties in the Water Code and other 
laws of the State. 
The statutory provisions affected by the proposed repeal are Texas Water Code, 
Chapter 15, Subchapter J, sec.sec.15.601, 15.602, and 15.603. 
sec.363.206. Criteria and Methods for Distribution of Funds 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 16, 1998.
TRD-9805343
Suzanne Schwartz
General Counsel
Texas Water Development Board
Proposed date of adoption: June 18, 1998
For further information, please call: (512) 463-7981

Division II. Applications for Assistance
31 TAC sec.363.226
The new section is proposed under the authority of the Texas Water Code, 
sec.6.101 which provide the Texas Water Development Board with the authority to 
adopt rules necessary to carry out the powers and duties in the Water Code and 
other laws of the State. 
The statutory provisions affected by the new section are Texas Water Code, 
Chapter 15, Subchapter J, sec.sec.15.601, 15.602, and 15.603. 

sec.363.226.Rural Hardship Grants.
(a) An applicant for an SRF loan for a project to benefit a rural hardship 
community is eligible to receive a grant through the hardship grants program for 
rural communities for an amount not to exceed 50% of the costs associated with 
planning, design, and construction of treatment works and systems utilizing 
alternative technology. 
(b) To be eligible for assistance under this section, the board must determine 
that the project will improve public health or reduce an environmental risk. An 
applicant for funding under this section must provide, in addition to all other 
required application material, documentation that, in the opinion of the 
executive administrator, is sufficient to allow the board to make a 
determination under this subsection. 
(c) The executive administrator or his designated representative may enter into 
agreements with applicants under this section for the purpose of setting forth 
the terms and conditions of grant distribution. 
(d) The grant amounts awarded under this section are not subject to the 
administrative cost recovery provisions of sec.363.209 of this title (relating 
to Administrative Cost Recovery). 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 16, 1998.
TRD-9805345
Suzanne Schwartz
General Counsel
Texas Water Development Board
Proposed date of adoption: June 18, 1998
For further information, please call: (512) 463-7981

PART XX. Edwards Aquifer Authority
CHAPTER 703. Definitions
31 TAC sec.703.1
The Edwards Aquifer Authority (EAA) proposes an amendment to sec.703.1, 
concerning definitions. The section is being amended to add new definitions and 
to put the current definitions in numerical order in accordance with 1 TAC 
sec.91.23, regarding structure; terminology. 
Gregory M. Ellis, general manager, Edwards Aquifer Authority, has determined 
that for the first five-year period the proposed section is in effect there will 
be no fiscal implications for state or local governments. 
Mr. Ellis also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be the addition of new terms to Chapter 703. These rules will not 
have an adverse economic impact on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the section as 
proposed. 
Comments on the proposed amendment may be submitted within 30 days after 
publication in the Texas Register to Gregory M. Ellis, General Manager, Edwards 
Aquifer Authority, P.O. Box 15830, 1615 North St. Mary's Street, San Antonio, 
Texas 78212-9030, or by facsimile (210) 222-9748. 
The amendment is proposed under Senate Bill 1477, sec.1.11, the Act of May 30, 
1993, 73rd Legislature, Regular Session, Chapter 626, sec.1.11(a), 1993 Texas 
Session Laws 2353, 2361, which requires the board of directors of the EAA to 
adopt rules necessary to carry out the EAA's powers and duties, including 
procedural rules. 
The following sections of Senate Bill 1477 are affected by the proposed section: 
sec.sec.1.03, 1.08, 1.11, 1.14-1.20, 1.29, 1.33, and 1.34. 

sec.703.1. Definitions. 
The following words and terms, when used in this part, shall have the following 
meanings, unless the context clearly indicates otherwise: 
<nl>(1)<ol> Act--The Edwards Aquifer Act, Act of May 30, 1993, 73rd Legislature 
Regular Session, Chapter 626, 1993 Texas General Laws 2353, as amended. 
<nl>(2)<ol> Additional regular permit--A groundwater withdrawal permit issued by 
the Authority pursuant to the Act, sec.1.18(a).
<nl>(3)<ol> Affected county--A county as defined in the Local Government Code, 
sec.232.021(1) that: 
(A) has a per capita income that averaged 25% below the state average for the 
most recent three consecutive years for which statistics are available and an 
unemployment rate that averaged 25% above the state average for the most recent 
three consecutive years for which statistics are available; and 
(B) any part of which is within 50 miles of an international border. Uvalde 
County is the only affected county within the Authority boundaries on the 
effective date of these rules. 
<nl>(4)<ol> Agricultural use- The beneficial use of groundwater for the 
production of plant or animal products, including irrigation (as defined by the 
Act, sec.1.03 (12)) to grow plants from seed, cutting or liner; the raising of 
livestock; and aquaculture. 
<nl>(5)<ol> APA--The Administrative Procedures Act, Chapter 2001, Government 
Code. 
<nl>(6)<ol> Application--A form document required by the Authority to initiate 
the process of obtaining the issuance of a permit, registration, exemption, 
license or other Authority approval. A declaration of historical use or 
declaration is an application for an initial regular permit. 
<nl>(7)<ol> Applicant--A person who files an application with the Authority. 
<nl>(8)<ol> Athletic field - A sports play field used primarily for organized 
sports for schools, professional sports or sanctioned league play whose 
essential feature is a grass turf. 
<nl>(A)<ol> Conforming Athletic Field - An athletic field that has filed a 
conservation and reuse plan according to sec.709.31 of this title (relating to 
Athletic Fields) that has been approved by the general manager. 
<nl>(B)<ol> Non-conforming athletic field - An athletic field that is not a 
conforming athletic field. 
<nl>(9)<ol> Aquifer--The Edwards Aquifer, which is that portion of an arcuate 
belt of porous, water-bearing, predominately carbonate rocks known as the 
Edwards and Associated Limestone in the Balcones Fault Zone extending from west 
to east to northeast from the hydrologic division near Brackettville in Kinney 
County that separates underground flow toward the Comal Springs and San Marcos 
Springs from underground flow to the Rio Grande Basin, through Uvalde, Medina, 
Atascosa, Bexar, Guadalupe and Comal counties, and in Hays County south of the 
hydrologic division near Kyle that separates flow toward the San Marcos River 
from flow to the Colorado River Basin. 
<nl>(10)<ol> Authority--The Edwards Aquifer Authority.
<nl>(11)<ol> Authority offices--The Authority's principal offices identified in 
sec.701.5 of this title (relating to Business Office and Mailing Address of the 
Authority). 
<nl>(12)<ol> Base withdrawal--For an applicant who is not a conjunctive user, 
base withdrawal shall mean the average monthly total groundwater withdrawals for 
the three lowest months of November, 1995 through February, 1996. For an 
applicant who is a conjunctive user, base withdrawal shall mean the average 
monthly total groundwater withdrawals for the three lowest months of November 
and through February during each of the three consecutive 12 month periods 
preceding the commencement of the applicant's use of the non-aquifer groundwater 
which qualifies the applicant as a conjunctive user. 
<nl>(13)<ol> Beneficial use--The use of the amount of water that is economically 
necessary for a purpose authorized by law when reasonable intelligence and 
reasonable diligence are used in applying the water to that purpose. The 
beneficial use of groundwater by a contract user inures to the benefit of the 
well owner. Use of water for irrigating of multiple or successive crops is a 
beneficial use to the extent it does not constitute waste. 
<nl>(14)<ol> Board--The Authority board of directors.
<nl>(15)<ol> Cap--The total amount of groundwater withdrawals that may be 
legally authorized by the Authority through the issuance of regular permits. 
Unless adjusted pursuant to sec.1.14(d) of the Act, this amount may not exceed: 
450,000 acre-feet per calendar year for the period from June 28, 1996, through 
December 31, 2007; and 400,000 acre-feet per calendar year for the period 
beginning January 1, 2008, and continuing thereafter.
<nl>(16)<ol> C.f.s.--Cubic feet per second. 
<nl>(17)<ol> Conjunctive user--An applicant is a conjunctive user if: 
<nl>(A)<ol> the user uses water other than aquifer groundwater for at least 10% 
of the portion of the total amount of water it used in the preceding 12 months; 
and 
<nl>(B)<ol> the non-aquifer groundwater satisfies a demand that would otherwise 
be satisfied by the aquifer; and 
<nl>(C)<ol> if the user uses all available non-aquifer groundwater first before 
using aquifer groundwater; and 
<nl>(D)<ol> if the non-aquifer groundwater use considered with respect to 
determining the user's status as a conjunctive user was first used after 1986. 
<nl>(18)<ol> Conservation--Any measure that would sustain or enhance the 
quantity of groundwater supply from the aquifer.
<nl>(19)<ol> Contested case hearing--A proceeding governed by the APA, in which 
the legal rights, duties or privileges of a party are to be determined by the 
board after an opportunity for an adjudicative hearing. 
<nl>(20)<ol> Contract user--A person who, during the historical period, withdrew 
or purchased groundwater from the aquifer and placed the groundwater to 
beneficial use pursuant to a legal right obtained from a prior user or an 
existing user. Groundwater use by a contract user inures to the benefit of the 
prior user or existing user and may be claimed by an existing user in support of 
his declaration. 
<nl>(21)<ol> Day--A 24-hour period beginning at midnight. 
<nl>(22)<ol> Declarant--An existing user who files a declaration of historical 
use. 
<nl>(23)<ol> Declaration of historical use or declaration--The document required 
to be filed pursuant to sec.1.16(a) of the Act and sec.707.83 of this title 
(relating to Requirement to File Declaration) and sec.707.87 of this title 
(relating to Time and Place for Filing) and is deemed to be an application for 
an initial regular permit. 
<nl>(24)<ol> Discretionary use--Any use of groundwater other than a 
nondiscretionary use. 
<nl>(25)<ol> Docket clerk--The Authority's docket clerk designated by the 
general manager. 
<nl>(26)<ol> Domestic or livestock use--Use of water for: 
(A) drinking, washing, or culinary purposes; 
(B) irrigation of a family garden or orchard of which the produce is for 
household consumption only; or 
(C) watering of animals. 
<nl>(27)<ol> Emergency permit--A groundwater withdrawal permit issued by the 
Authority pursuant to sec.1.20(a) of the Act. 
<nl>(28)<ol> Exempt well--A well that produces 25,000 gallons of water a day or 
less for domestic or livestock use, or livestock watering, that is not within, 
or serving, a subdivision requiring platting. The withdrawal and beneficial use 
of less than 1,250 gallons of water a day from an otherwise exempt well for 
purposes other than domestic or livestock use, or livestock watering, does not 
void a well's exempt status. 
<nl>(29)<ol> Existing well--An operating well drilled before June 1, 1993. 
<nl>(30)<ol> Existing user--Either: 
(A) A person who, on June 1, 1993, owned a well from which groundwater from the 
aquifer has been withdrawn and placed to beneficial use during the historical 
period; or 
(B) The successor in interest of a person owning a well described in 
subparagraph (A) of this <nl>paragraph<ol> [definition].
<nl>(31)<ol> Extraterritorial jurisdiction of a municipality--A municipality's 
extraterritorial jurisdiction as determined under the Local Government Code, 
Chapter 42, except that for a municipality that has a population of 5,000 or 
more and is located in a county bordering the Rio Grande River, it means the 
area outside the municipal limits but within five miles of those limits. 
<nl>(32)<ol> EUWD--The Edwards Underground Water District, the Authority's 
predecessor agency. 
<nl>(33)<ol> General manager--The Authority's executive director and chief 
administrator hired by the board. 
<nl>(34)<ol> Golf course--An area of land used for the game of golf. 
<nl>(A)<ol> Conforming Golf Course - A golf course that has filed a golf course 
water use reduction plan according to sec.709.29 of this title (relating to Golf 
Courses) that has been approved by the general manager. 
<nl>(B)<ol> Non-conforming golf course - A golf course that is not a conforming 
golf course. 
<nl>(35)<ol> Groundwater--Water percolating below the surface of the earth. 
<nl>(36)<ol> Groundwater right--A right acquired under State of Texas law to 
withdraw and place to beneficial use groundwater from the aquifer. 
<nl>(37)<ol> Historical period--The period from June 1, 1972, through May 31, 
1993. 
<nl>(38)<ol> Historical use--The lawful withdrawing and placing to beneficial 
use of groundwater from the aquifer during the historical period. For a prior 
user or an existing user whose historic use has been affected by a requirement 
of, or participation in, a federal program, the Authority shall give credit for 
the amount that would have been withdrawn and beneficially used during the 
historical period by such prior user or existing user but for the operation of 
the federal program. If the use was for irrigation purposes, the credit shall be 
based upon irrigation use on comparable acres in a similarly situated farm unit 
that is not in the federal program. If the use was for non-irrigation purposes, 
the credit shall be based upon the use of a comparable and similarly situated 
user whose uses were not affected by participation in a federal program. 
<nl>(39)<ol> Index well--One of the following wells listed in subparagraphs (A)-
(C) of this paragraph (designated to indicate aquifer conditions and to declare 
stages of a critical period:
<nl>(A)<ol> Well J-17 (well number AY-68-37-203). This well is used for Bexar, 
Guadalupe, Comal, Hays, and Caldwell counties. 
<nl>(B)<ol> Well J-27 (well number YP-69-50-302). This well is used for Uvalde 
county. 
<nl>(C)<ol> Medina well in the Hondo Yard Well (well number TD-69-47-306). This 
well is used for Medina and Atascosa counties. 
<nl>(40)<ol> Industrial use--The use of water for, or in connection with, 
commercial or industrial activities, including manufacturing; bottling; brewing; 
food processing; scientific research and technology; recycling; production of 
concrete, asphalt, and cement; commercial uses of water for tourism, 
entertainment, and hotel or motel lodging; generation of power other than 
hydroelectric; and other business activities. 
<nl>(41)<ol> Initial regular permit--A groundwater withdrawal permit issued by 
the Authority pursuant to sec.1.16(d) of the Act. 
<nl>(42)<ol> Initial regular permit minimum withdrawal amount: 
(A) for an existing user with irrigation use who files a declaration, not less 
than two acre-feet a year for each acre of land that the user, his contract 
user, prior user, or former existing user; 
(i) who had historical use in any one calendar year during the historical 
period; 
(ii) owned or leased or otherwise had a legal right to irrigate during the 
historical period; and 
(iii) owned a well equipped and capable of irrigating the land; or 
(B) for an existing user who has operated a well in more than ten calendar years 
during the historical period, and files a declaration, the average amount of 
groundwater withdrawn annually during the historical period calculated as 
follows: total adjusted aggregate withdrawals divided by the adjusted number of 
years in which the well was operated during the historical period. For the 
purposes of this subparagraph: 
(i) the total adjusted aggregate withdrawals equals the total aggregate 
withdrawals less, if the existing user so elects, an amount equal to the amount 
of withdrawals for any period of consecutive years during the historical period 
equal to 50% of the years more than ten that the well was operated during the 
historical period; and 
(ii) the adjusted number of years calculated as follows: the number of months 
during this historical period in which a well was an operating well divided by 
12 months; or 
(C) for an existing user who has operated a well in 36 or more months but not 
exceeding ten calendar years during the historical period and files a 
declaration, the average amount of groundwater withdrawn annually during the 
historical period calculated as follows: total aggregate withdrawals divided by 
(the number of months during the historical period in which a well was an 
operating well divided by 12 months); or 
(D) for an existing user who has operated a well in 35 or fewer months during 
the historical period, and files a declaration, the average amount of 
groundwater withdrawn annually during the historical period calculated as 
follows: total aggregated withdrawals divided by the (number of months during 
the historical period in which a well was an operating well divided by 12 
months) times 0.75. 
<nl>(43)<ol> Interruptible--When referring to a groundwater withdrawal permit, 
the conditioning of the right to withdraw groundwater from the aquifer that 
makes the right subject to complete cessation, temporary curtailment, or 
reduction of the amount of groundwater that may be withdrawn from the aquifer 
based upon the measurement of a water level at an index well, or as otherwise 
determined by the board. 
<nl>(44)<ol> Irrigation use--The use of water for the irrigation of pastures and 
commercial crops, including orchards. 
<nl>(45)<ol> Judge--A SOAH administrative law judge.
<nl>(46)<ol> Landscape watering--The application of groundwater to grow or 
maintain plants such as flowers, ground covers, turf or grasses, shrubs, and 
trees, but does not include: 
<nl>(A)<ol> Nondiscretionary use without waste of groundwater by a commercial 
nursery to the extent the water is used for production rather than decorative 
landscaping; 
(B) Application of groundwater without waste to a non-commercial family garden 
or orchard, the produce of which is for household consumption only; and 
(C) Application of groundwater in the morning before 10:00 a.m. and in the 
evening after 8:00 p.m. by means of a bucket (not to exceed 5 gallons in 
capacity), hand-held hose, soaker hose, or properly-installed drip irrigation 
system, immediately next to a concrete foundation solely for the purpose of 
preventing, and to the extent the watering is necessary to prevent, substantial 
damage to the foundation or the structure caused by movement of the foundation. 
<nl>(47)<ol> Livestock--Animals, beasts or poultry collected or raised for 
pleasure, recreational use, or commercial use. 
<nl>(48)<ol> Maximum allowable withdrawals--The product of the base withdrawal 
times the reduction multiplier assigned to each reduction stage. The stages and 
reduction multipliers are shown in sec.709.11(f) of this title (relating to 
Beginning and End of Critical Period Stages). 
<nl>(49)<ol> Maximum transfer withdrawals - the product of the estimated monthly 
amount of water an applicant is authorized to withdraw for each interim 
authorization or regular permit, as indicated on a transfer schedule, times the 
transfer multiplier assigned to each stage.
<nl>(50)<ol> m.s.l.--Measurement above mean seal level, normally measured in 
feet. 
<nl>(51)<ol> Municipal use--The water use within or outside of a municipality 
and its environs whether supplied by a person, privately owned utility, 
political subdivision or other entity for certain purposes specified: 
(A) the use of water for domestic use, the watering of lawns and family gardens; 
fighting fires; sprinkling streets; flushing sewers and drains; water parks and 
parkways; and recreation, including public and private swimming pools; or 
(B) the use of water in industrial and commercial enterprises supplied by a 
municipal distribution system without special construction to meet its demands. 
(C) the application of treated effluent on land under a permit issued under 
Chapter 26, Water Code, if: 
(i) the primary purpose of the application is the treatment or necessary 
disposal of the effluent; 
(ii) the application site is a park, parkway, golf course, or other landscaped 
area within the Authority's boundaries; or 
(iii) the effluent applied to the site is generated within an area for which the 
TNRCC has adopted a rule that prohibits the discharge of the effluent. 
<nl>(52)<ol> New well--A well drilled on or after June 1, 1993. 
<nl>(53)<ol> Non-deteriorated well--A well, the condition of which, will not 
cause or is not likely to cause waste. 
<nl>(54)<ol> Nondiscretionary use--A use of groundwater for: 
<nl>(A)<ol> The protection of public health, safety, or welfare, including but 
not limited to use for drinking, food preparation, personal hygiene, public 
sanitation, control or prevention of disease, and fire fighting; 
<nl>(B)<ol> An industrial, agricultural, or military use that directly supports 
gainful employment; 
<nl>(C)<ol> Irrigation use; or 
<nl>(D)<ol> Domestic or livestock use. 
<nl>(55)<ol> Non-potable--All water that is not potable water. 
<nl>(56)<ol> Operate a well or operating well--A well that is in use or was in 
use during the historical period. A well is in use, regardless of whether 
withdrawals are made from the aquifer in a calendar year, if: 
(A) it is a non-deteriorated well containing the casing, pump and pump column in 
good operating condition; or 
(B) it is a non-deteriorated well and is capped. 
<nl>(57)<ol> Order--Any written directive of the board carrying out the powers 
and duties of the Authority. 
<nl>(58)<ol> Party--Each person admitted as a party in a contested case hearing. 
<nl>(59)<ol> Permit--The written document setting forth the legal authorization 
issued by the Authority to an applicant to engage in an activity within the 
Authority's jurisdiction for which the Authority's approval is required 
including, but not limited to, groundwater withdrawal permits and well 
construction permits. 
<nl>(60)<ol> Permittee--A person to whom the Authority has issued a permit. 
<nl>(61)<ol> Person--An individual, corporation, organization, government or 
governmental subdivision or agency, business trust, estate trust, partnership, 
association or any other legal entity. 
<nl>(62)<ol> Pleadings--Any document filed by parties in a contested case 
hearing, such as applications, protests, complaints, claims, petitions, 
preliminary reports, answers, motions and other similar documents.
<nl>(63)<ol> Pollution--The alteration or contamination of the physical, 
thermal, chemical, or biological quality of groundwater in the aquifer, or any 
other water in the state, that renders the water harmful, detrimental or 
injurious to humans, animal life, vegetation, property, or public health, 
safety, or welfare or that impairs the usefulness of the public enjoyment of the 
water for any lawful or reasonable purpose. 
<nl>(64)<ol> Potable--Water that has been treated for public drinking water 
supply purveyors. 
<nl>(65)<ol> Prior user--A person who owned a well during the historical period 
and who, during his ownership, withdrew aquifer water from the well and placed 
it to beneficial use during the historical period, but during the historical 
period had conveyed his ownership interest in the well to another person. 
<nl>(66)<ol> Produces 25,000 gallons of water a day or less--An operating well 
constructed or equipped so as to be incapable of producing groundwater from the 
aquifer at a rate in excess of 25,000 gallons per day. 
<nl>(67)<ol> Protestant--Any party opposing, in whole or in part, an 
application. 
<nl>(68)<ol> Recharge--Increasing the supply of water to the aquifer by 
naturally occurring channels or artificial means. 
<nl>(69)<ol> Reclaimed water--Wastewater that is under the direct control of the 
treatment plant owner/operator that has been treated to a quality suitable for a 
beneficial use. 
<nl>(70)<ol> Reduction multiplier--A multiplier specified in sec.709.11(d) and 
(e) of this title which is used to calculate an applicant's maximum allowable 
withdrawals depending on the applicable critical period reduction stage. 
<nl>(71)<ol> Registrant--A person who files a registration with the Authority. 
<nl>(72)<ol> Registration--The document required to be filed pursuant to 
sec.1.33(b) of the Act or sec.707.201 of this title (relating to Requirement to 
Register). 
<nl>(73)<ol> Residential water use (RWU)--The amount used by a retail public 
utility for residential purposes (single family housing) per person per day, 
calculated on an annual basis. RWU is calculated by the following formula: 
(total use)(% residential connections by volume) &divide; (total connections)(% 
residential connections) x 2.9* &divide; 365 days per year. *A constant factor 
estimating the average number of persons per residential connection. 
<nl>(74)<ol> Reuse--Authorized use for one or more beneficial purposes of water 
that remains unconsumed after the water is used for the original purpose and 
before the water is discharged or otherwise allowed to flow into a watercourse, 
lake, or other body of state-owned water. 
<nl>(75)<ol> Retail water utility--A person, corporation, public utility, water 
supply service corporation, municipality, political subdivision or agency 
operating, maintaining, or controlling in this state facilities for providing 
potable water service for compensation.
<nl>(76)<ol> San Antonio Pool -- That part of the aquifer underlying the 
boundaries of the Authority other than Uvalde County.
<nl>(77)<ol> Service area--That geographic area in which a retail water utility 
provides retail water service to customers as designated in the utility's 
Critical Period Management Ordinance. 
<nl>(78)<ol> SOAH--The State Office of Administrative Hearings. 
<nl>(79)<ol> Subdivision requiring platting--The division of a tract of land 
into parts, whether it is made using a metes and bounds description in a deed of 
conveyance or in a contract for deed, by using a contract of sale or other 
executory contract to convey, or by using any other method, and: 
(A) for land located within the corporate limits of a municipality or in the 
extraterritorial jurisdiction of a municipality, the tract is divided into two 
or more parts to lay out a subdivision, including an addition to a municipality, 
to lay out suburbs, buildings or other lots, or to lay out streets, alleys, 
squares, parks or other parts of the tract intended to be dedicated to public 
use or for the use of purchasers or owners of lots fronting on or adjacent to 
the streets, alleys, squares, parks or other parts. A division of land under 
this subparagraph does not include a division of land into parts greater than 
five acres, where each part has access and no public improvement is being 
dedicated; 
(B) for land located outside the corporate limits of a municipality, and outside 
the extraterritorial jurisdiction of a municipality, and in other than an 
affected county, the tract is divided into two or more parts to lay out a 
subdivision, including an addition to a municipality, to lay out suburbs, 
building or other lots, and to lay out streets, alleys, squares, parks or other 
parts of the tract intended to be dedicated to public use or for the use of 
purchasers or owners of lots fronting on or adjacent to the streets, alleys, 
squares, parks or other parts. A division of land under this subsection does not 
include a division into parts greater than five acres, where each part has 
access and no public improvement is being dedicated; or 
(C) for land located outside the corporate limits of municipalities, and outside 
the extraterritorial jurisdiction of a municipality, and in an affected county, 
the tract is divided into four or more tracts that are intended primarily for 
residential use, and the subdivision of the tract is not incident to the 
conveyance of the land as a gift. A lot is rebuttably presumed to be intended 
for residential use if the lot is five acres or less. 
<nl>(80)<ol> Term permit--A groundwater withdrawal permit issued by the 
Authority pursuant to the Act, sec.1.19(a). 
<nl>(81)<ol> TNRCC--The Texas Natural Resource Conservation Commission. 
<nl>(82)<ol> Transfer schedule--A document indicating the estimated monthly 
amount to be withdrawn from each interim authorization or regular permit that 
has been transferred. 
<nl>(83)<ol> Underground water--The meaning of "groundwater" as defined by Water 
Code, sec.36.001(5) and this section. 
<nl>(84)<ol> Uvalde Pool--That part of the Aquifer underlying Uvalde County. 
<nl>(85)<ol> U.S.G.S.--The United States Geological Survey. 
<nl>(86)<ol> Waste -- 
(A) Withdrawal of groundwater from the aquifer at a rate and amount that causes 
or threatens to cause intrusion into the reservoir of water unsuitable for 
agricultural, gardening, domestic or stock-raising purposes;
(B) The flowing or producing of wells from the aquifer if the water produced is 
not used for a beneficial purpose; 
(C) Escape of groundwater from the aquifer to any other reservoir that does not 
contain groundwater; 
(D) Pollution or harmful alteration of groundwater in the aquifer by salt water 
or other deleterious matter admitted from another stratum or from the surface of 
the ground; 
(E) Willfully or negligently causing, suffering or permitting groundwater from 
the aquifer to escape into any river, creek, natural watercourse, depression, 
lake, reservoir, drain, sewer, street, highway, road, or road ditch, or onto any 
land other than that of the owner of the well unless such discharge is 
authorized by permit, rule, or order issued by the TNRCC under Chapter 26, Water 
Code; 
(F) Groundwater pumped from the aquifer for irrigation that escapes as 
irrigation tailwater onto land, other than that of the well owner, unless 
permission has been granted by the occupant of the land receiving the discharge; 
(G) For water produced from an artesian well, "waste" has the meaning assigned 
by the Water Code, sec.11.205; or 
(H) Withdrawal of water that is substantially in excess of the volume or rate 
reasonably required for a particular use constitutes waste. Irrigation use of 
two acre-feet of water per irrigated acre is rebuttably presumed not to 
constitute waste. 
<nl>(87)<ol> Wastewater--Water containing waste including greywater, blackwater, 
or water contaminated by waste contact, including process-generated or 
contaminated rainfall runoff.
<nl>(88)<ol> Watering day--A day designated for landscape watering, limited to 
the morning hours from midnight to 10:00 a.m. and the evening hours from 8:00 
p.m. to midnight. Thus, if Saturday is a designated watering day, the period of 
time referenced is Saturday morning between 12:00 a.m. to 10:00 a.m., and 
Saturday evening between 8:00 p.m. and midnight. The watering hours for Stage IV 
are 3:00 a.m. to 7:00 a.m. and 8:00 p.m. to 11:00 p.m. 
<nl>(89)<ol> Well--A bored, drilled, or driven shaft, or an artificial opening, 
in the ground for the purpose of making or that is capable of making withdrawals 
from the aquifer made by digging, jetting, or some other method, where the depth 
of the shaft or opening is greater than its largest surface dimension, but does 
not include a surface pit, surface excavation, or natural depression. 
<nl>(90)<ol> Well construction permit--A permit issued by the Authority pursuant 
to sec.1.15(b) of the Act for the construction or modification of wells or other 
works designed for the withdrawal of water from the aquifer. 
<nl>(91)<ol> Well J-17--State well number AY-68-37-203 located in Bexar County. 
<nl>(92)<ol> Well J-27--State well number YP-69-50-302 located in Uvalde County. 
<nl>(93)<ol> Well serving a subdivision requiring platting--A well located 
within the Authority's boundaries, regardless of whether the well is located 
inside or outside the boundaries of a subdivision requiring platting, that 
provides or is to provide, piped water for any use to two or more service 
connections located within a subdivision requiring platting. A well owned by one 
person, or jointly by a husband and wife, that provides or is to provide, piped 
water for domestic or livestock use to 10 or fewer service connections, and a 
person who is the owner of each service connection is either the well owner, a 
person related to the owner, a member of the owner's household within the second 
degree of consanguinity or an employee of the owner, is not a well serving a 
subdivision requiring platting. 
<nl>(94)<ol> Well within a subdivision requiring platting--A well within the 
boundaries evidenced on a recorded plat of a subdivision requiring platting. A 
well that otherwise meets the criteria to be an exempt well is not a well within 
a subdivision requiring platting if the well owner has a registered on-site 
sewage treatment facility and the well meets the following criteria listed in 
subparagraphs (A)-(B) of this <nl>paragraph<ol> [definition]: 
(A) the well was in existence prior to June 28, 1996; or 
(B) the well is located within a subdivision required to be platted if the 
subdivision meets the following criteria listed in clauses (i)-(iii)of this 
subparagraph: 
(i) the subdivision existed before June 28, 1996; 
(ii) there is no existing retail potable water service to the subdivision; and 
(iii) as of January 1, 1998, more than 25% of the lots within the subdivision 
are owned by person other than the subdivider or the subdivision developer. 
Withdrawals from wells satisfying these criteria may not exceed one acre-foot of 
groundwater per calendar year for exempt purposes. 
<nl>(95)<ol> Withdrawal--An act, or a failure to act, that results in taking 
groundwater from the aquifer by or through man-made facilities, including 
pumping, withdrawing or diverting groundwater.
<nl>(96)<ol> Withdrawal suspension program (WSP)--A program administered by the 
Authority pursuant to which existing users having interim authorization status, 
or the holder of a regular permit, voluntarily agree to suspend all or part of 
their withdrawal of groundwater from the aquifer in consideration for payments 
voluntarily funded by WSP participants.
<nl>(97)<ol> WSP participant--Any applicant who participates in a WSP by paying 
amounts to the Authority for the purpose of funding payments to exiting users 
having interim authorization status or the holder of a regular permit to suspend 
all or part of their withdrawal of aquifer groundwater. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805505
Gregory M. Ellis
General Manager
Edwards Aquifer Authority
Earliest possible date of adoption: May 31, 1998
For further information, please call: (210) 222-2204

TITLE 34. PUBLIC FINANCE
PART I. Comptroller of Public Accounts
CHAPTER 3.Tax Administration
SUBCHAPTER B.Natural Gas Production Tax
34 TAC sec.3.21
The Comptroller of Public Accounts proposes an amendment to sec.3.21, concerning 
exemption or tax reduction for high-cost natural gas. This section is being 
amended pursuant to Senate Bill 862, 75th Legislature, 1997, which amended the 
application filing requirements for the high-cost gas well exemption or tax 
reduction. The bill also requires an adjustment to the amount of the exemption 
or reduction if an application is filed after the deadline. 
Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the amendment will be in effect there will be no significant revenue 
impact on the state or local government. 
Mr. Reissig also has determined that for each year of the first five years the 
amendment is in effect the public benefit anticipated as a result of adopting 
the amendment will be in providing new information regarding tax 
responsibilities. This amendment is adopted under the Tax Code, Title 2, and 
does not require a statement of fiscal implications for small businesses. There 
is no significant anticipated economic cost to individuals who are required to 
comply with the proposed amendment. 
Comments on the proposal may be submitted to Karey W. Barton, Manager, Tax 
Policy Division, P.O. Box 13528, Austin, Texas 78711. 
This amendment is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
The amendment implements the Tax Code, sec.201.057.

sec.3.21.Exemption or Tax Reduction for High-Cost Natural Gas.
(a) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) Commission-The Railroad Commission of Texas. 
(2) Recompletion-The performance of work within an existing wellbore for the 
purpose of drilling to a deeper producing formation or plugging back to a more 
shallow producing formation. 
(3) High-cost gas- 
(A) High-cost natural gas as described by Natural Gas Policy Act of 1978, 
sec.107, as that section exists on January 1, 1989, without regard to whether 
that section is in effect or whether a determination has been made that the gas 
is high-cost natural gas for purposes of that Act; or 
(B) All gas produced from oil wells or gas wells within a Commission approved 
co-production project. 
(4) Commission approved co-production project-A reservoir development project in 
which the Commission has recognized that water withdrawals from an oil or gas 
reservoir in excess of specified minimum volumes will result in recovery of 
additional oil and/or gas from the reservoir that would not be produced by 
conventional production methods and where operators of wells completed in the 
reservoir have begun to implement Commission requirements to withdraw such 
volumes of water and dispose of such water outside the subject reservoir. 
Reservoirs potentially eligible for this designation shall be limited to those 
reservoirs in which oil and/or gas has been bypassed by water encroachment 
caused by production from the reservoir and such bypassed oil and/or gas may be 
produced as a result of reservoir- wide high-volume water withdrawals of natural 
formation water. 
(5) Date of first production-For purposes of the reduced tax rate available for 
high-cost natural gas wells spudded or completed after August 31, 1996, shall 
mean the first day of the month following the earlier of the month of the 
deliverability test as reported on the appropriate Commission form or the 
production month as indicated on the first production report filed showing a gas 
disposition code other than "lease or field fuel use" or "vented or flared." 
(6) Consecutive months-Months in consecutive order, regardless of whether or not 
a well produces oil or gas during any or all such months.
(7) Amount of tax reduction for a well-The product of the full tax rate times 
the ratio of drilling and completion costs for the well to twice the median 
drilling and completion costs for high-costs wells for which an application for 
the exemption or tax reduction was made during the previous state fiscal year. 
Drilling and completion costs for a recompletion shall only include current and 
contemporaneous costs associated with the recompletion.
(8) Reduced tax rate-The tax rate obtained when the amount of tax reduction is 
subtracted from the full tax rate, except that the effective rate of the tax 
shall never be less than zero. 
(b) Producers. Producers producing gas or gas products extracted from the gas 
from a gas completion certified by the Commission as qualifying for the high-
cost gas tax exemption or reduced tax rate or from an oil or gas well within a 
Commission approved co-production project may file with the comptroller an 
application for tax exemption or the reduced tax rate. Except as provided by 
subsection (k) of this section, tax must be paid on gas and gas products at the 
full rate until the date the comptroller approves the application. 
(c) Condensate. Condensate, as defined under the Tax Code, sec.201.001(2), 
produced with the high- cost gas is not exempt from the tax. 
(d) Gas produced. Gas produced along with oil is not exempt from the tax unless 
the gas is from an oil well within a Commission approved co-production project. 
(e) Application form. The operator shall make application on forms prescribed by 
the comptroller for the exemption or tax reduction on gas produced and sold or 
used by the operator or by any other interest owner in the property. The 
operator shall provide a copy of the approved application to any interest owner 
taking gas in-kind. The operator shall also be responsible for advising the 
comptroller whenever the status of an exemption or tax reduction changes. 
(f) Application supporting documents. The application for exemption or reduced 
tax rate shall include: 
(1) a copy of the Commission High-cost Gas State Severance Tax Exemption 
Certificate Application; 
(2) a copy of the letter of tax exemption certificate issued by the Commission; 
(3) the date the Commission approves the exemption or reduced tax rate; 
(4) the date of first production; 
(5) a statement as to whether or not tax has been paid on the gas for periods 
after the effective date of the exemption, and the name of the party paying the 
tax; and 
(6) a report of drilling and completion costs incurred for each well on a form 
and in the detail as determined by the comptroller.
(g) Application due date. The application for exemption or tax reduction must be 
filed with the comptroller <nl>on or before<ol> the later of the 180th day after 
the date of first production or the 45th day after the date of approval by the 
Commission<nl>, except when:<ol>[<nl>(1)<ol> <nl> the application is received 
after August 31, 1995, and before September 1, 1997, for<ol>[For] wells spudded 
or completed and producing prior to September 1, 1995, and qualifying for the 
exemption created by the Tax Code, sec.201.057(b), <nl>where the<ol> application 
for the exemption must be made within 180 days of September 1, 1995<nl>, 
or<ol>[.] 
<nl>(2)<ol> <nl> an<ol>[An] application <nl>is filed<ol> for<nl>the<ol> 
exemption created by the Tax Code, sec.201.057(a)(2)(B) <nl>and<ol> may not be 
filed before January 1, 1990, or after December 31, 1998. 
<nl>(h)<ol> <nl> Applications that miss the due date. Any application that is 
not filed by the application due date is subject to a 10% reduction of the tax 
exemption or tax reduction. The 10% reduction will begin on the first of the 
month after the 180th day after the date of first production and end on the 
first of the month prior to the received date by the comptroller of the tax 
exemption or tax reduction application. Applicants who were denied prior to 
September 1, 1997, for missing the application due date may reapply for the 
exemption after September 1, 1997, but will be subject to the 10% reduction of 
the tax exemption or tax reduction.<ol> 
<nl>(i)<ol>[(h)] Time limitation for refunds. When an application for exemption 
or reduced tax rate has been approved by the comptroller, a producer or 
purchaser may file amended reports to recover the tax paid by the producer or 
purchaser on the high-cost gas for periods after the date of first production 
and prior to the comptroller's approval of exemption. In order to obtain a 
refund, the amended reports must be filed within one year after the date the 
comptroller approves the application for exemption or reduced tax rate. 
<nl>(j)<ol>[(i)] Notification to non-producers. Producers obtaining an approval 
for exemption from the comptroller shall furnish to any first purchaser required 
to report a purchase of high-cost gas a copy of the comptroller's approval. Any 
first purchaser paying tax on high-cost gas for periods after the date of first 
production and prior to the comptroller's approval of exemption shall file 
amended reports to recover the tax paid. In order to obtain a refund, the 
amended reports must be filed within one year after the date the comptroller 
approves the application for exemption or reduced tax rate. 
<nl>(k)<ol>[(j)] Reporting requirements. Producers and purchasers must use the 
following designations when reporting gas that qualifies for the temporary 
exemption or tax reduction. 
(1) Producers and purchasers reporting high-cost gas from a well spudded or 
completed before September 1, 1996, shall, after the comptroller approves the 
exemption, designate the gas as being exempt from tax by reporting lease type 
"6," which shall mean "Approved High-Cost Gas Well Gas-Temporary Exemption." 
(2) Producers and purchasers reporting high-cost gas from a well spudded or 
completed on or after September 1, 1996, shall, after the comptroller approves 
the reduced tax rate, designate the gas as being exempt from tax by reporting 
lease type "5," which shall mean "Approved High-Cost Gas Well Gas- Reduced Tax 
Rate." 
(3) Producers and purchasers reporting high-cost gas from an oil or gas well as 
defined by subsection (a) (3)(B) of this section shall, after the comptroller 
approves the exemption, designate the gas as being exempt from tax by reporting 
lease type "8," which shall mean "High-Cost Gas Exemption-Co-Production 
Project." 
(4) Gas qualifying for the temporary exemption, the reduced tax rate or the 
exemption for gas from a co- production project must be reported separately from 
any non-exempt production, if any, on the same lease. 
(5) Producers or purchasers reporting exempt gas and non-exempt gas through the 
use of a commingling permit issued by the Commission must allocate the gas 
production between exempt and non-exempt gas by use of a method approved by the 
comptroller. 
(6) Except as provided by <nl>paragraph (5) of this subsection<ol>[subsection 
(j)(5) of this section], producers or purchasers reporting exempt gas or non-
exempt gas must report the gas by using as a part of the comptroller's lease 
identification number the completion number assigned by the Commission. 
<nl>(l)<ol>[(k)] Reduced tax rate. Tax must be paid at the full rate on all gas 
as defined in subsection (a) (2)(A) of this section for wells spudded or 
completed between September 1, 1996, and August 31, 1997. On or after September 
1, 1997, the party paying the tax at the full rate may apply to the comptroller 
for a refund of tax equal to the difference between the tax paid at the full 
rate and the tax that would be due if calculated at the reduced tax rate as 
defined in subsection (a)(7) of this section. 
<nl>(m)<ol>[(l)] Limitation of tax reduction. Once the comptroller approves an 
application for the reduced tax rate, tax will be due at the reduced tax rate 
for the first 120 consecutive months beginning with the date of first production 
or until the cumulative value of the tax reduction equals 50% of the drilling 
and completion costs incurred for the well, whichever occurs first. The operator 
shall provide to any interest owner taking gas in-kind the amount of tax 
reduction calculated according to subsection (a)(7) of this section. This agency 
hereby certifies that the proposal has been reviewed by legal counsel and found 
to be within the agency's authority to adopt. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 16, 1998.
TRD-9805330
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 463-4062

SUBCHAPTER EE.Boat and Motor Sales and Use Tax
34 TAC sec.3.741
The Comptroller of Public Accounts proposes an amendment to sec.3.741, 
concerning imposition and collection of tax. House Bills 966 and 2542, 75th 
Legislature, 1997, amended the Parks and Wildlife Code, sec.31.003(1), effective 
September 1, 1997, to include in the definition of boat, all boats not more than 
65 feet in length. The Tax Code references the Parks and Wildlife Code in 
defining a boat taxable under Chapter 160. 
Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the amendment will be in effect there will be no significant revenue 
impact on the state or local government. 
Mr. Reissig also has determined that for each year of the first five years the 
amendment is in effect the public benefit anticipated as a result of adopting 
the amendment will be in providing new information regarding tax 
responsibilities. This amendment is adopted under the Tax Code, Title 2, and 
does not require a statement of fiscal implications for small businesses. There 
is no significantanticipated economic cost to individuals who are required to 
comply with the proposed amendment. 
Comments on the proposal may be submitted to Karey W. Barton, Manager, Tax 
Policy Division, P.O. Box 13528, Austin, Texas 78711. 
This amendment is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
The amendment implements the Tax Code, sec.160.001. (Tax Code, sec.sec.<nl> 
151.3291,<ol> 160.001, 160.002, 160.021, and 160.041). 

sec.3.741.Imposition and Collection of Tax.
(a) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) Accessories - Nonessential tangible personal property attached to a boat for 
the convenience or comfort of the operator or passengers. For purpose of this 
rule, the term "accessories" includes, but is not limited to, radios, mirrors, 
transom-mounted ladders, electric trolling motors, and depth finders. 
[(2) Commercial use - Commercial use includes, but is not limited to, use for 
fishing guides, commercial fishing, tour boats, and rental boats.] 
<nl>(2)<ol>[(3)] Dealer - A person or entity engaged in the business of buying, 
selling, or exchanging boats or boat motors at an established or permanent place 
of business in this state. At each such place of business a sign must be 
conspicuously displayed showing the name of the dealership so that it may be 
located by the public, and sufficient space must be maintained for an office, 
service area, and display of boats and boat motors. 
<nl>(3)<ol>[(4)] Department - The Texas Parks and Wildlife Department. 
<nl>(4)<ol>[(5)] Manufacturer - A person or entity engaged in the business of 
manufacturing new and unused boats and boat motors for the purpose of sale or 
trade. 
<nl>(5)<ol>[(6)] Retail sale - Any sale of a boat or boat motor other than a 
sale in which the dealer or manufacturer acquires the boat or boat motor for the 
exclusive purpose of resale. Dealers and manufacturers, as defined, are the only 
persons or entities that may acquire a boat or boat motor for resale. 
<nl>(6)<ol>[(7)] Tax assessor-collector - Any of the county tax assessors-
collectors in the State of Texas. 
<nl>(7)<ol>[(8)] Taxable boat - Any watercraft, other than a seaplane on water, 
not more than 65 feet in length[, manufactured or used primarily for 
noncommercial purposes]. This includes federally documented boats, motorboats, 
sailboats, jet skis, and boats designed to accommodate an outboard motor. 
Excluded from this definition are canoes, kayaks, rowboats, inflatable rafts, or 
other watercraft designed to be propelled by paddle, oar, or pole. These 
excluded watercraft <nl>are<ol>[will continue to be] taxed under Limited Sales, 
Excise and Use Tax, unless some other exemption applies. 
<nl>(8)<ol>[(9)] Taxable motor - Any self-contained internal combustion 
propulsion system of any horsepower, excluding fuel supply, used to propel a 
watercraft, that is detachable from the boat [and used primarily for 
noncommercial purposes]. Electric boat motors are excluded.
<nl>(9)<ol>[(10)] Total consideration - The amount paid or to be paid for a 
taxable boat or boat motor, including all accessories attached at the time of or 
before the sale. This amount includes the costs of transportation before the 
sale and any manufacturer's or importer's excise tax imposed by the United 
States government. This amount does not include any separately stated finance 
charges, service charges, or other interest charges. Also excluded from total 
consideration will be the value of a taxable boat or boat motor taken by the 
seller as all or part of the consideration for the sale of the boat or boat 
motor. No other tangible, intangible, or real property will be excluded from 
total consideration. Also excluded from total consideration are charges for 
transportation of the boat or boat motor after the sale. 
<nl>(10)<ol>[(11)] Use - Any storage or other exercise of rights of ownership in 
this state by any person or entity, excluding the storage, display, or holding 
of a boat or boat motor exclusively for sale by a dealer or manufacturer, as 
defined in this subsection. 
(b) General principles. 
(1) The purchase of a taxable boat and boat motor and all accessories attached 
thereto at the time of sale is subject to the boat and boat motor sales and use 
tax (Tax Code, Chapter 160). <nl>The purchase of a taxable boat or boat motor 
for purposes of rental are subject to Tax Code, Chapter 160.<ol> 
(2) The purchase of accessories for a boat and boat motor attached after the 
time of sale of the boat or boat motor is subject to the limited sales, excise, 
and use tax (Tax Code, Chapter 151). <nl>The rental of a taxable boat or boat 
motor is subject to Tax Code, Chapter 151.<ol>
(3) The purchase of tangible personal property is subject to the limited sales, 
excise, and use tax, if no item can be identified as a boat or boat motor even 
if the combination of items of tangible personal property becomes a boat or boat 
motor. If items of tangible personal property are combined to produce a boat or 
boat motor, the initial titling or registration of the boat or boat motor in the 
name of the person who produced the boat or boat motor is not subject to the 
provisions of the boat and boat motor sales and use tax. If, however, the boat 
or boat motor is titled or registered in any other person's name, the transfer 
is subject to the provisions of the boat and boat motor sales and use tax. 
(4) Safety equipment required by the Parks and Wildlife Code, sec.sec.31.064-
31.071, including life preservers and fire extinguishers, purchased with a 
taxable boat or boat motor are considered to be attached to the boat or boat 
motor and subject to the provisions of the boat and boat motor sales and use 
tax. 
(c) Imposition of the tax. 
(1) A sales tax is imposed on each retail sale of a taxable boat or boat motor 
in this state. The tax is the obligation of and shall be paid by the purchaser 
of the taxable boat or boat motor. 
(2) The tax rate is 6.25% of total consideration paid or to be paid. 
(d) Payment of the tax. 
(1) After the completion of the seller, donor, or trader's affidavit for the 
sale of a boat or boat motor, if the seller collects the tax from the purchaser, 
the seller must remit the tax to either a county tax assessor-collector or to 
the department within 20 working days from the date the taxable boat or boat 
motor is delivered to the purchaser. 
(2) After the completion of the seller, donor, or trader's affidavit for the 
sale of a boat or boat motor, the seller may give the original affidavit to the 
purchaser. The purchaser is then required to remit the tax to either a county 
tax assessor-collector or to the department within 20 working days from the date 
the taxable boat or boat motor is delivered to the purchaser.
(3) The payment of the boat or boat motor use tax is the responsibility of the 
user and is due within 20 working days after the date that the taxable boat or 
boat motor is brought into this state. 
(e) Purchase of accessories/components for resale. 
(1) Items combined into a boat or boat motor. A resale certificate as provided 
for in the Limited Sales, Excise, and Use Tax Act may be used in purchasing 
tangible personal property to be combined into a boat or boat motor held for 
sale in the purchaser's regular course of business. This includes all 
accessories that are included in a single sales price for the accessory, boat, 
and boat motor. These accessories include water skis and tow ropes. The lump-sum 
sales price will be subject to the boat and boat motor sales and use tax. 
(2) Accessories purchased to be attached to a boat or boat motor that is not 
subject to the boat and boat motor sales and use tax (boats [and boat motors 
held for rental, lease, used primarily in a commercial manner or are]over 65 
feet in length), are subject to the limited sales, excise, and use tax<nl>. See 
also<ol>[, and] sec.3.285 of this title (relating to Resale Certificate; Sales 
for Resale), sec.3.294 of this title (relating to Rental and Lease of Tangible 
Personal Property), and sec.3.297 of this title (relating to Carriers).
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 16, 1998.
TRD-9805299
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 463-4062

TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART I. Texas Department of Human Services
CHAPTER 2.Medically Needy Program
SUBCHAPTER A.Program Requirements
40 TAC sec.sec.2.1004, 2.1006
The Texas Department of Human Services (DHS) proposes to amend sec.2.1004, 
concerning eligible groups, and sec.2.1006, concerning requirements for 
application, in its Medically Needy Program chapter. Also in this issue of the 
Texas Register, DHS is proposing similar policies in Chapters 4 and 5. The 
purpose of the amendments is to comply with the Balanced Budget Act of 1997 by 
allowing medical coverage of children through age 18 whose family income is 
below 100% of the federal poverty income limits, change references to Aid to 
Families with Dependent Children (AFDC) to Temporary Assistance for Needy 
Families (TANF), and delete the domicile requirement. 
Eric M. Bost, commissioner, has determined that for the first five- year period 
the proposed sections will be in effect there will be fiscal implications for 
state government as a result of enforcing or administering the sections. The 
effect on state government for the first five-year period the sections will be 
in effect is an estimated additional cost of $458,274 in fiscal year (FY) 1998; 
$1,572,480 in FY 1999; $1,670,497 in FY 2000; $1,047,943 in FY 2001; and 
$375,881 in FY 2002. There will be no fiscal implications for local government 
as a result of enforcing or administering the sections. 
Mr. Bost also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be that the state will be in compliance with the Health and 
Human Services (HHSC) mandate. The amendments increase the age limit by which 
children are eligible to receive Medicaid and will have no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the proposed sections. 
Questions about the content of this proposal may be directed to Rita King at 
(512) 438-4148 in DHS's Client Self-Support Services Department. Written 
comments on the proposal may be submitted to Supervisor, Rules and Handbooks 
Unit-220, Texas Department of Human Services E-205, P.O. Box 149030, Austin, 
Texas 78714-9030, within 30 days of publication in the Texas Register. 
The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 
and 31, which provides the department with the authority to administer public 
and financial assistance programs. 
The amendments implement the Human Resources Code, sec.sec.22.001-22.030 and 
sec.sec.31.001-31.0325. 

sec.2.1004.Eligible Groups. 
The program serves the following groups of people: 
(1) single pregnant women who meet the <nl>Temporary Assistance for Needy 
Families (TANF) <ol>[aid to families with dependent children (AFDC)] resource 
rules but who cannot qualify for <nl>TANF <ol>[AFDC] because they have no 
<nl>TANF <ol>[AFDC]-eligible children and their income exceeds the <nl>TANF 
<ol>[AFDC] income limit; 
(2) pregnant women in two-parent families who meet the <nl> TANF <ol>[AFDC] 
resource rules but who cannot qualify for <nl> TANF <ol>[AFDC] because they have 
no TANF [AFDC]-eligible children in their care or the children are not deprived 
of parental support and the family income exceeds the <nl>TANF <ol>[AFDC] income 
limits; 
(3) children under <nl>19 <ol>[18 in two-parent families who meet all AFDC 
eligibility requirements except that they are not deprived of parental support 
and the family income exceeds the AFDC income limits]; 
[(4) foster children in DHS conservatorship;
[(5) dependent children under 18 who meet all AFDC eligibility requirements 
except that the family income exceeds the AFDC income limits;] 
<nl>(4)<ol> [6] adult caretakers of dependent children who meet all eligibility 
requirements, including relationship to a dependent child, except they or their 
families have income that exceeds the <nl>TANF<ol> [AFDC] income limits, or they 
have exhausted their time- limited <nl>TANF <ol>[AFDC] benefits, or they choose 
to bypass <nl>TANF <ol>[AFDC] and receive Medicaid-only benefits;
<nl>(5)<ol> [7] second parents (spouses of the dependent child's natural or 
adoptive parent or stepparent) whose family income exceeds the <nl>TANF 
<ol>[AFDC] income limits, who have exhausted their time- limited <nl>TANF 
<ol>[AFDC] benefits, or who have chosen to bypass <nl>TANF <ol>[AFDC] and 
receive Medicaid-only benefits. 

sec.2.1006.Requirements for Application. 
(a) Citizenship. Citizenship requirements for Medically Needy Program (MNP) 
applicants are the same as requirements for <nl>Temporary Assistance for Needy 
Families (TANF) <ol>[aid to families with dependent children (AFDC)] applicants 
outlined in the <nl>TANF <ol>[AFDC] rules. 
(b) Resources. Resource limits and types of countable and exempt resources for 
MNP are the same as those outlined in the Texas Department of Human Services' 
<nl>TANF <ol>[AFDC] rules in Chapter 3 of this title (relating to Income 
Assistance Services) with the following exceptions:
(1) the policy of receiving benefits up to six months pending a good faith 
effort to sell real property does not apply to the MNP; and 
(2) the policy for transferring resources to qualify for assistance does not 
apply to the MNP. 
(c) Age/relationship/deprivation. Eligible <nl>persons <ol>[children] must meet 
the age, relationship, and deprivation requirements outlined in the TANF [AFDC] 
rules with the following exceptions<nl>:<ol>[.] 
(1) <nl>eligible <ol>[Foster] children [in Texas Department of Human Services 
conservatorship] do not have to meet the <nl>TANF <ol>[AFDC] relationship <nl>or 
deprivation requirements<ol>; [requirement.] 
[(2) children in two-parent families must meet the AFDC relationship requirement 
to be eligible.] 
<nl>(2)<ol> [(5)] for caretakers or second parents to be eligible, <nl>they must 
exercise care and control of a <ol>[the] child <nl>who meets <ol>[must meet] the 
<nl>TANF age, relationship, and <ol>deprivation <nl>requirements; 
<ol>[requirement.
<nl>(3)<ol> [(6)] pregnant women do not have to have a child who meets the 
<nl>TANF requirements <ol>[AFDC deprivation requirement] to be 
eligible<nl>;<ol>[.]
[(4) children in two-parent families do not have to meet the AFDC deprivation 
requirement.] 
<nl>(4)<ol> [(3)] relationship must be established between a parent and a child 
in order to include the child's needs in an application for a pregnant 
woman<nl>; and <ol>[in a two-parent family.] 
<nl>(5)<ol> [(7)] children must be under <nl> 19 <ol>[18] years of age. 
(d) School attendance. Eligible children <nl>do not have to <ol>[must] meet the 
school attendance requirement outlined in the <nl>TANF<ol> [AFDC] rules. 
(e) Social security number. Eligible members of the budget group must meet the 
social security requirement outlined in the <nl>TANF <ol> [AFDC] rules. 
Ineligible members will be requested to provide social security numbers, but 
they are not required to provide their numbers.
(f) Third-party resources. Eligible members of the budget group must cooperate 
in third-party resources activities outlined in the <nl> TANF <ol>[AFDC] rules. 
(g) Strikers. 
(1) The <nl>TANF <ol>[AFDC] striker policy applies to: 
(A) children whose eligibility is based on parental deprivation; and 
(B) caretakers of deprived children. 
(2) The <nl>TANF <ol>[AFDC] striker policy does not apply to: 
(A) pregnant women; 
(B) children whose eligibility is not based on deprivation; or 
(C) caretakers and second parents of deprived children when the second parent is 
on strike and the children continue to be deprived. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 14, 1998.
TRD-9805203
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: July 1, 1998
For further information, please call: (512) 438-3765

CHAPTER 4.Medicaid Programs-Children and Pregnant Women
SUBCHAPTER A.Eligibility Requirements
40 TAC sec.sec.4.1004, 4.1010
The Texas Department of Human Services (DHS) proposes to amend sec.4.1004, 
concerning eligible groups, and sec.4.1010, concerningdetermining income 
eligibility, in its Medicaid Programs' Children and Pregnant Women chapter. Also 
in this issue of the Texas Register, DHS is proposing similar policies in 
Chapters 2 and 5. The purpose of the amendments is to comply with the Balanced 
Budget Act of 1997 by allowing medical coverage of children through age 18 whose 
family income is below 100% of the federal poverty income limits, and change 
references to Aid to Families with Dependent Children (AFDC) to Temporary 
Assistance for Needy Families (TANF). 
Eric M. Bost, commissioner, has determined that for the first five- year period 
the proposed sections will be in effect there will be fiscal implications for 
state government as a result of enforcing or administering the sections. The 
effect on state government for the first five-year period the sections will be 
in effect is an estimated additional cost of $458,274 in fiscal year (FY) 1998; 
$1,572,480 in FY 1999; $1,670,497 in FY 2000; $1,047,943 in FY 2001; and 
$375,881 in FY 2002. There will be no fiscal implications for local government 
as a result of enforcing or administering the sections. 
Mr. Bost also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be that the state will be in compliance with the Health and 
Human Services (HHSC) mandate. The amendments increase the age limit by which 
children are eligible to receive Medicaid and will have no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the proposed sections. 
Questions about the content of this proposal may be directed to Rita King at 
(512) 438-4148 in DHS's Client Self-Support Services Department. Written 
comments on the proposal may be submitted to Supervisor, Rules and Handbooks 
Unit-220, Texas Department of Human Services E-205, P.O. Box 149030, Austin, 
Texas 78714-9030, within 30 days of publication in the Texas Register. 
The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 
and 31, which provides the department with the authority to administer public 
and financial assistance programs. 
The amendments implement the Human Resources Code, sec.sec.22.001-22.030 and 
sec.sec.31.001-31.0325. 

sec.4.1004. Eligible Groups. 
The programs serve the following groups of people: 
(1)-(2) (No change.) 
(3) children <nl>ages <ol>[age] six <nl> through 18 <ol>[or older born on or 
after October 1, 1983], whose family income is less than 100% of the federal 
poverty limit and whose total resources are less than the food stamp limit for 
households with no members age 60 or over; 
(4) (No change.) 
(5) children born prior to October 1, 1983, who meet all <nl>Temporary 
Assistance for Needy Families (TANF) <ol>[Aid to Families with Dependent 
Children (AFDC)] eligibility requirements, but choose to bypass <nl>TANF 
<ol>[AFDC] and receive Medicaid-only benefits; 
(6) children who meet all <nl>TANF <ol>[AFDC] eligibility requirements except 
income. These deprived children live with their legal parent and stepparent of 
their legal minor parent and their minor parent's parents. They are ineligible 
for <nl>TANF <ol>[AFDC] because of the applied income of their stepparent or 
grandparents.

sec.4.1010. Determining Income Eligibility.
Income eligibility is determined using the <nl>Temporary Assistance for Needy 
Families (TANF) <ol>[Aid to Families with Dependent Children (AFDC)] eligibility 
requirements outlined in the <nl>TANF <ol>[AFDC] rules with the following 
exceptions: 
(1) The income limits for pregnant women and children under age one are 185% of 
the federal poverty level adjusted annually to federal requirements<nl>;<ol>[.] 
(2) The income limits for children ages one through five are 133% of the federal 
poverty level adjusted annually according to federal requirements<nl>;<ol>[.] 
(3) The income limits for children <nl>ages <ol>six <nl> through 18 <ol>[or 
older born on or after October 1, 1983,] are 100% of the federal poverty level 
adjusted annually according to federal requirements<nl>;<ol>[.]
(4) The types of countable and exempt income are the same as those outlined in 
the <nl>TANF <ol>[AFDC] rules except <nl> TANF <ol>[AFDC] payments are countable 
income for <nl>children and pregnant women (<ol>CPW<nl>);<ol>[.] 
(5) The <nl>TANF<ol> [AFDC] 30 and 1/3 disregard is not used<nl>;<ol>[.] 
(6) The budget group concept described in sec.4.1008 of this title (relating to 
Definition) is applied for determining income eligibility<nl>;<ol>[.] 
(7) The caretaker relative of a child in the budget group may choose to exclude 
the child's income, resources, and needs when determining eligibility of the 
child's siblings who are also in the budget group<nl>;<ol>[.] 
(8) There is no income eligibility requirement for newborn children described in 
sec.4.1004(4) of this title (relating to Eligible Groups)<nl>;<ol>[.] 
(9) Ongoing eligibility for pregnant women is not denied because of increased 
income<nl>; and<ol>[.] 
(10) The 185% income test is not applied to type programs 46 and 47. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 14, 1998.
TRD-9805204
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: July 1, 1998
For further information, please call: (512) 438-3765

CHAPTER 5.Medicaid Programs for Aliens
SUBCHAPTER B.Medicaid Benefits for Aliens Not Legally Residing in the United 
States
40 TAC sec.5.2004
The Texas Department of Human Services (DHS) proposes to amend sec.5.2004, 
concerning eligibility requirements, in its Medicaid Programs for Aliens 
chapter. Also in this issue of the Texas Register, DHS is proposing similar 
policies in Chapters 2 and 4. The purpose of the amendment is to comply with the 
Balanced Budget Act of 1997 by allowing medical coverage of children through age 
18 whose family income is below 100% of the federal poverty income limits, and 
to delete the relationship/domicile requirements. 
Eric M. Bost, commissioner, has determined that for the first five- year period 
the proposed section will be in effect there will be fiscal implications for 
state government as a result of enforcing or administering the section. The 
effect on state government for the first five-year period the section will be in 
effect is an estimated additional cost of $458,274 in fiscal year (FY) 1998; 
$1,572,480 in FY 1999; $1,670,497 in FY 2000; $1,047,943 in FY 2001; and 
$375,881 in FY 2002. There will be no fiscal implications for local government 
as a result of enforcing or administering the section. 
Mr. Bost also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be that the state will be in compliance with the Health and Human 
Services (HHSC) mandate. The amendment increases the age limit by which children 
are eligible to receive Medicaid and will have no effect on small businesses. 
There is no anticipated economic cost to persons who are required to comply with 
the proposed section. 
Questions about the content of this proposal may be directed to Rita King at 
(512) 438-4148 in DHS's Client Self-Support Services Department. Written 
comments on the proposal may be submitted to Supervisor, Rules and Handbooks 
Unit-220, Texas Department of Human Services E-205, P.O. Box 149030, Austin, 
Texas 78714-9030, within 30 days of publication in the <nl>Texas Register <ol>. 
The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 31, which provides the department with the authority to administer public 
and financial assistance programs. 
The amendment implements the Human Resources Code, sec.sec.22.001-22.030 and 
sec.sec.31.001-31.0325. 

sec.5.2004.Eligibility Requirements. 
Applicants for medical coverage must meet the eligibility requirements in 
Chapter 2 of this title (relating to the Medically Needy Program), <nl> except 
<ol>[with the following exceptions:] 
[(1)] sec.2.1006(a) of this title (relating to Requirements for Application) 
[does not apply;]<nl>.<ol> 
[(2) The following children do not need to meet the relationship/domicile 
requirements:] 
[(A) children under six whose family income is less that 133% of the federal 
poverty level and whose total resources are less than the food stamp resource 
limit for households with no members age 60 or over; and] 
[(B) children age six or older born on or after October 1, 1983, whose family 
income is less that 100% of the federal poverty level and whose total resources 
are less than the food stamp limit for households with no members age 60 or 
over.] 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 14, 1998.
TRD-9805205
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: July 1, 1998
For further information, please call: (512) 438-3765

PART II. Texas Rehabilitation Commission
CHAPTER 101. General Rules
40 TAC sec.101.4
The Texas Rehabilitation Commission proposes an amendment to sec.101.4, 
concerning general rules. In accordance with the Appropriations Act, sec.167, 
the Commission has reviewed this section and has determined that it should be 
readopted with changes. The section is being amended in order to conform with 
the language of the Rehabilitation Act Amendments of 1994. 
Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has 
determined that for the first five-year period the section is in effect, there 
will be no fiscal implications for state or local government. 
Mr. Harrison also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be conformance with the language of the Rehabilitation Act 
Amendments of 1994. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the section 
as proposed. 
Comments on the proposal may be submitted to Roger Darley, Assistant General 
Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite 
7300, Austin, Texas 78751. 
The amendment is proposed under the Texas Human Resources Code, Title 7, Chapter 
111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, 
which provides the Texas Rehabilitation Commission with the authority to 
promulgate rules consistent with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal. 

sec.101.4. Affirmative Action for Equal Employment Opportunity.
(a) The commission fully supports the national and state goal of achieving equal 
employment opportunity for persons of every race, color, sex, religion, age, 
national origin, and physical or mental <nl>impairment <ol> [handicap], through 
affirmative action. Affirmative action for equal employment opportunity 
incorporates the principles of: 
(1)-(4) (No change.) 
(b) Affirmative action envisions specific and individual result-oriented actions 
by management at all levels designed to ensure equal employment opportunity for 
minorities, women, and [the] qualified <nl>individuals with disabilities<ol> 
[handicapped] in all segments of the commission work force.
(c)-(f) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805501
Charles Schiesser
Chief of Staff
Texas Rehabilitation Commission
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 424-4050

CHAPTER 106. Contract Administration
SUBCHAPTER A. Acquisition of Client Goods and Services
40 TAC sec.106.36
The Texas Rehabilitation Commission proposes an amendment to sec.106.36, 
concerning contract administration. In accordance with the Appropriations Act, 
sec.167, the Commission has reviewed the section and has determined that it 
should be readopted with changes. The section is being amended to reflect the 
internal reorganization of the senior executives within the Commission. 
Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has 
determined that for the first five-year period the section is in effect, there 
will be no fiscal implications for state or local government. 
Mr. Harrison also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be the internal reorganization of the senior executives within the 
Commission and restructuring of the agency. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the section as proposed. 
Comments on the proposal may be submitted to Roger Darley, Assistant General 
Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite 
7300, Austin, Texas 78751. 
The amendment is proposed under the Texas Human Resources Code, Title 7, Chapter 
111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, 
which provides the Texas Rehabilitation Commission with the authority to 
promulgate rules consistent with Title 7, Texas Human Resources Code. 
No other statute, article, or code is affected by this proposal. 

sec.106.36. Contract Review Committee. 
A Contract Review Committee is created for the purpose of continuous review of 
these rules, standards, and implementing procedures. The Committee makes 
recommendations to the Commissioner, and is composed of the following staff: 
(1) (No change.) 
(2) Deputy Commissioner, <nl>Programs<ol> [Rehabilitation Services]; 
(3) Deputy Commissioner, Financial [and Planning] Services; 
(4) (No change.) 
<nl>(5)<ol> Deputy Commissioner, Field Operations; 
<nl>(6)<ol> [(5)] General Counsel; 
<nl>(7)<ol> [(6)] Associate Commissioner, Management Audit; 
<nl>(8)<ol> [(7)] GCU Director. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805503
Charles Schiesser
Chief of Staff
Texas Rehabilitation Commission
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 424-4050

CHAPTER 115. Memoranda of Understanding with Other State Agencies
40 TAC sec.115.2
The Texas Rehabilitation Commission proposes an amendment to sec.115.2, 
concerning memoranda of understanding with other state agencies. In accordance 
with the Appropriations Act, sec.167, the Commission has reviewed this section 
and has determined that it should be readopted with changes. The section is 
being amended in order to conform with the language of the Rehabilitation Act 
Amendments of 1994. 
Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has 
determined that for the first five-year period the section is in effect, there 
will be no fiscal implications for state or local government. 
Mr. Harrison also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be conformance with the language of the Rehabilitation Act 
Amendments of 1994. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the section 
as proposed. 
Comments on the proposal may be submitted to Roger Darley, Assistant General 
Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite 
7300, Austin, Texas 78751. 
The amendment is proposed under the Texas Human Resources Code, Title 7, Chapter 
111, sec.111.018 and sec.111.023, House Bill Number 1, Article IX, sec.167, 
which provides the Texas Rehabilitation Commission with the authority to 
promulgate rules consistent with Title 7, Texas Human Resources Code. 
No other statute, article, or code is affected by this proposal. 

sec.115.2. Memorandum of Understanding Regarding the Exchange and Distribution 
of Public Awareness Information.
(a)-(b) (No change.) 
(c) Responsibilities of TRC. Under the Texas Human Resources Code, Title 7, the 
TRC is the principal authority in the state on rehabilitation of [handicapped 
and] disabled individuals leading to employment, except for those matters 
relating to individuals whose <nl>disabilities<ol> [handicaps] are of a visual 
nature, the <nl>adjudication<ol> [determination] of social security disability 
<nl>claims,<ol> [benefits, licensure of occupational therapists,] promotion of 
employer acceptance of workers with disabilities, and development of programs to 
serve persons with developmental disabilities. 
(d)-(i) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 20, 1998.
TRD-9805504
Charles Schiesser
Chief of Staff
Texas Rehabilitation Commission
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 424-4050

TITLE 43. TRANSPORTATION
PART II. Texas Turnpike Authority Division
CHAPTER 52.Project Development
SUBCHAPTER A.Environmental Review and Public Involvement
43 TAC sec.sec.52.1-52.8
The Board of Directors of the Texas Turnpike Authority Division of the Texas 
Department of Transportation proposes new sec.sec.52.1-52.8, concerning 
environmental review and public involvement. 
EXPLANATION OF PROPOSED NEW SECTIONS
Senate Bill 370, 75th Legislature, 1997, created the Texas Turnpike Authority 
Division of the Texas Department of Transportation, to be governed by a Board of 
Directors. The Texas Transportation Commission employs the director of the 
authority. The director reports to the commission and the board.
Transportation Code, sec.361.103 requires the authority, by rule, to provide for 
the authority's environmental review of turnpike projects. Section 361.103 
requires these rules to provide for: public comment on environmental reviews of 
turnpike projects, including the types of projects for which public hearings are 
required, and a procedure for requesting a public hearing on an environmental 
review for which a hearing is not required; the environmental factors and 
impacts the authority will evaluate in its environmental reviews; and 
environmental review of alternate routes for a proposed turnpike project. 
In order to comply with Transportation Code, sec.361.103, protect the 
environment, and provide for public involvement in turnpike projects, the board 
proposes new sec.sec.52.1-52.8, concerning environmental review and public 
involvement in authority projects. 
Section 52.1. Defines the purpose of new Subchapter A, which is to prescribe the 
environmental review procedures of the authority, and to specify that the 
procedures are designed to provide for the due consideration of environmental 
impacts related to toll facility project development, and to ensure adequate 
opportunity for public comments regarding the environmental reviews conducted 
for authority projects. 
Section 52.2. Defines words and terms used in the new subchapter. 
Section 52.3. Specifies those turnpike projects performed by the authority that 
require environmental reviews, consisting of new toll facility construction and 
those projects involving major improvements to existing toll facilities that do 
not meet the criteria for exclusion. 
Section 52.4. Prescribes the requirements for environmental studies and public 
involvement processes for projects utilizing federal aid highway funds or 
department funds, including compliance with all applicable federal and state 
requirements. 
Section 52.5. Defines the projects performed by the authority that are excluded 
from the environmental review requirements of this subchapter, and describes the 
criteria and procedures for a board determination of exclusion from the 
environmental review requirements, for any other authority projects that appear 
to meet the criteria for exclusion set out in this section. 
Section 52.6. Prescribes: early coordination and public involvement requirements 
for authority projects, including coordination with other governmental entities 
and the public during the project development process; when public meetings with 
property owners and the general public are required; when an opportunity for a 
public hearing will be afforded; when a public hearing will be conducted; how 
the public may request a public hearing; and how the public will be notified of 
any public meeting or hearing, or of any project planning or development issues. 
Section 52.7. Describes the process for assessing environmental impacts caused 
by authority projects, including requiring an environmental assessment when the 
extent of environmental impacts from a project is not readily discernible as to 
either magnitude or significance. Specifies coordination and consultation 
requirements pursuant to sec.52.6; when a finding of no significant impact 
(FONSI) may be made; public notification of a FONSI; and when an environmental 
impact statement (EIS) is required. 
Section 52.8. Prescribes when an environmental impact statement (EIS) is 
required for authority projects; requires the preparation of a notice of intent 
to prepare an EIS; describes the requirements of the notice of intent; and 
specifies the provisions required to be in a draft EIS and final EIS. This 
section also describes procedures for external review of notices of intent, 
draft EIS, and final EIS; publication of notice of the availability of a draft 
EIS or final EIS, and of the opportunity to provide public comment on an EIS; 
prescribes a public hearing prior to preparation of the final EIS; requires the 
preparation of a record of decision; and specifies when a supplemental EIS is 
required and the contents of a supplemental EIS. This section finally describes 
when requests for deviation from these procedures may be made, and the required 
provisions in the final environmental documentation. 
FISCAL NOTE 
Frank J. Smith, Director, Finance Division, has determined that for the first 
five years the new sections as proposed are in effect, there will be no 
significant fiscal implications for state or local governments as a result of 
enforcement or administration of the sections. There are no anticipated economic 
costs to persons required to comply with the sections as proposed.
Pete Davis, P.E., Director, Texas Turnpike Authority Division, has certified 
that there will be no significant impact on local economies or overall 
employment as a result of enforcing or administering the proposed rules. 
PUBLIC BENEFIT
Mr. Davis has also determined that for each year of the first five years the 
sections as proposed are in effect, the public benefit anticipated as a result 
of enforcement of and compliance with the sections will be uniform policies and 
procedures governing the environmental review of authority projects, protection 
of the environment, and public involvement in authority projects. There will be 
no effect on small businesses. 
SUBMITTAL OF COMMENTS 
Written comments on the proposed new sections may be submitted to Pete Davis, 
P.E., Director, Texas Turnpike Authority Division, 125 East 11th Street, Austin, 
Texas 78701-2483, (512) 936-0903, fax (512) 305-9518. The deadline for receipt 
of comments will be 5:00 p.m. on June 1, 1998. 
STATUTORY DIVISION
The new sections are proposed under Transportation Code, sec.361.042, which 
requires the Board to adopt rules for the regulation of its affairs and the 
conduct of its business, and more specifically, Transportation Code, 
sec.361.103, which requires the authority to provide, by rule, for the 
authority's environmental review of turnpike projects. 
No statutes, articles, or codes, are affected by these proposed new sections.

sec.52.1. Purpose. 
This subchapter prescribes the environmental review procedures for the projects 
of the Texas Turnpike Authority Division of the Texas Department of 
Transportation. These procedures are prescribed to comply with Transportation 
Code, sec.361.103. The procedures are designed to provide for the due 
consideration of environmental impacts related to toll facility project 
development, and to ensure adequate opportunity for public comments regarding 
the environmental reviews conducted for authority projects.

sec.52.2. Definitions. 
The following words and terms, when used in this subchapter, shall have the 
following meanings unless the context clearly indicates otherwise.
(1) Agency - A state or federal governmental body having jurisdiction over 
environmental issues related to the development of transportation projects. 
(2) Authority - The Texas Turnpike Authority Division of the Texas Department of 
Transportation. 
(3) Authority project - Shall have the same meaning as "Turnpike Project," as 
defined in Transportation Code, sec.361.001. 
(4) Department - The Texas Department of Transportation.
(5) Board - The board of directors of the authority.
(6) Environmental assessment (EA) - A concise public document that briefly 
provides sufficient evidence and analysis to determine whether to prepare an 
environmental impact statement (EIS) or a finding of no significant impact 
(FONSI) for a proposed action. 
(7) Environmental document - A decision-making document which incorporates 
environmental studies, coordination and consultation efforts, and engineering 
elements. Environmental documents include environmental assessments and 
environmental impact statements. 
(8) Environmental Impact Statement (EIS) - A detailed written statement 
consistent with the requirements of the National Environmental Policy Act 
(NEPA), as amended. 
(9) Environmental review - The conducting, as may be applicable, of all of the 
procedures set forth in this subchapter, including the conducting of 
environmental studies, the preparation of environmental documents, the holding 
of public meetings or hearings, and the determining of FONSI or the accepting of 
a final EIS. 
(10) Environmental study - The investigation of potential environmental impacts. 
(11) Finding of no significant impact (FONSI) - A document that briefly presents 
the reasons why an action, not otherwise determined to be excluded from 
environmental review, will not have a significant effect on the human 
environment and for which an environmental impact statement will not be 
prepared. It shall include the environmental assessment or a summary of the 
environmental assessment and shall identify any other related environmental 
documents. 
(12) Human environment - The natural and physical environment and the 
relationship of people with that environment. 
(13) Impacts - Direct impacts are those caused by the authority project and 
occur at the same time and place. Indirect impacts are caused by the authority 
project and are later in time or farther removed in distance, but are still 
reasonably foreseeable. Indirect impacts may include growth-inducing impacts and 
other impacts related to induced changes in the pattern of land use, population 
density or growth rate, and related impacts on air and water and other natural 
systems, including ecosystems. 
(14) Mitigation - Includes avoiding the impact altogether by not taking a 
certain action or parts of an action; minimizing impacts by limiting the degree 
or magnitude of the action and its implementation; rectifying the impact by 
repairing, rehabilitating, or restoring the affected environment; reducing or 
eliminating the impact over time by preservation and maintenance operations 
during the life of the action; or compensating for the impact by replacing or 
providing substitute resources or environments. 
(15) Notice of intent - A notice that an environmental impact statement will be 
prepared and considered. The notice will briefly describe the proposed authority 
project and possible alternatives; describe the authority's proposed scoping 
process, including whether, when, and where any scoping meeting will be held; 
and state the name and address of a person who can answer questions about the 
proposed action and the environmental impact statement. 
(16) Public hearing - Held after public notice to solicit public input in 
determining a preferred alternative for or with respect to any changes to an 
authority project. 
(17) Public involvement - An ongoing phase of the project planning process which 
encourages and solicits public input, and provides the public the opportunity to 
become fully informed regarding project development.
(18) Public meeting - Informal discussions, which may assist in the preparation 
of environmental documents, may be held with local public officials, interested 
citizens or the general public, and local, neighborhood, or special interest 
groups for the purpose of exchanging ideas and collecting input on the need for 
and possible alternatives to a given authority project.
(19) Significantly - Shall have the meaning described in 40 CFR sec.1508.27.

sec.52.3.Projects Requiring Environmental Reviews. 
An environmental review shall be performed by the authority for authority 
projects involving new toll facility construction and for major improvements to 
existing toll facilities which do not meet the criteria for exclusion set forth 
in sec.52.5 of this title (relating to Projects Excluded from Environmental 
Reviews). The environmental review required by this subchapter shall be 
conducted before the location or alignment of an authority project has been 
adopted.
(1) Construction of any new toll facility shall require an environmental review. 
(2) Any authority projects involving major improvements to existing toll 
facilities shall require environmental review if the project:
(A) requires a substantial amount of additional right-of-way;
(B) changes the layout or function of connecting roads or streets or of the 
facility being improved; 
(C) adversely affects a substantial amount of abutting real property; or 
(D) may otherwise have a substantial social, economic or environmental impact. 

sec.52.4. Requirements for Federally-Funded Projects; Department-Funded 
Projects. 
(a) Federally-funded projects. 
(1) Environmental studies for authority projects that utilize federal-aid 
highway funds shall be conducted in accordance with applicable state and federal 
requirements, including Title 23, Code of Federal Regulations, Part 771. 
(2) Public involvement for authority projects that utilize federal aid highway 
funds shall be consistent with applicable state and federal requirements and 
sec.52.6 of this title (relating to Early Coordination and Public Involvement). 
(b) Department-funded projects. 
(1) Environmental studies for authority projects that utilize funding from the 
department shall be conducted in accordance with applicable state requirements, 
including Chapter 2, Subchapter C of this title (relating to Environmental 
Review and Public Involvement for Transportation Projects).
(2) Public involvement for authority projects that utilize funding from the 
department shall be consistent with applicable state requirements and sec.52.6 
of this title. 

sec.52.5. Projects Excluded from Environmental Reviews.
(a) The board may determine that certain projects undertaken by the authority 
are excluded from the environmental review requirements of this subchapter. 
Unless environmental review is required by other applicable law, the board may 
determine not to undertake environmental review with respect to a project which 
does not: 
(1) involve significant environmental impacts; 
(2) induce significant impacts to planned growth or land use of the project 
area; 
(3) require the relocation of significant numbers of persons; 
(4) have a significant impact on any natural, cultural, recreational, historic, 
or other resource; 
(5) involve significant air, noise, or water quality impacts; 
(6) significantly impact travel patterns; or 
(7) have any significant environmental impacts, either individually or 
cumulatively. 
(b) For any authority project that may involve substantial environmental impacts 
and/or substantial controversy on environmental grounds or for any authority 
project in which the extent of impacts cannot be readily discerned as to 
magnitude or significance, the board may require the conduct of appropriate 
environmental studies to determine if the project may be excluded from the 
environmental review requirements of this title. 
(c) The following are examples of authority projects which meet the criteria set 
forth in subsection (a) of this section, and generally will not require a board 
determination of exclusion: 
(1) authority projects that do not involve or lead directly to construction, 
such as planning and technical studies, toll revenue feasibility studies, 
engineering feasibility studies that either define the elements of a proposed 
authority project or identify alternatives so that the social, economic, and 
environmental impacts of such alternatives can be assessed for potential impact; 
(2) approval of utility installations or repairs along or across a toll 
facility; 
(3) landscaping; 
(4) installation of fencing; fixed and variable message signs and route markers; 
pavement markings; mechanical, electromechanical, hydraulic and electronic toll 
collection devices; traffic signals; safety enhancement devices; speed 
monitoring and control devices; and railroad warning devices; 
(5) emergency repairs as defined in Title 23, United States Code, sec.125; 
(6) improvements to existing rest areas unless such improvements require a 
"Section 402" permit for point source discharge under the federal Clean Water 
Act (33 U.S.C. sec.sec.1251 et seq.); 
(7) alterations to facilities in order to make them accessible for elderly and 
handicapped persons; 
(8) improvements, regular maintenance and emergency repairs to existing 
mechanical, electromechanical, hydraulic, electronic and manned toll collection 
facilities; 
(9) minor expansion of existing facilities, including ramps, pavements, toll 
plazas and approach aprons; or 
(10) removal, replacement and rehabilitation of pavements, shoulders, retaining, 
and screen walls, and drainage appurtenances. 
(d) Authority projects other than those set forth in subsection (c) of this 
section which appear to meet the criteria for exclusion from the environmental 
review requirements found in subsection (a) of this section shall require review 
and a determination by the board that the authority project may be excluded. 
This determination of exclusion shall be made after review of documentation 
submitted in the form of a descriptive letter or brief environmental study, 
which summarizes any coordination with resource agencies or interested parties, 
and which demonstrates that the criteria for exclusion from the environmental 
review requirements as found in subsection (a) of this section are satisfied. 
Projects which the board may determine are excluded from environmental review 
include, but are not limited to, the following: 
(1) modernizing a toll facility by resurfacing, restoration, rehabilitation, 
reconstruction, adding shoulders, adding auxiliary lanes, capacity improvements 
to existing entry/exit ramps, and correcting substandard curves and 
intersections with minor amounts of additional right-of-way required;
(2) improving toll facility safety or traffic operations by installing 
mechanical, electromechanical, hydraulic and electronic toll and traffic 
management equipment, lighting and similar improvements; 
(3) improving bridges by widening, lengthening, reconstructing, or replacement 
within existing right-of-way or for which only minimal additional right-of-way 
is required; 
(4) construction of new rest areas within existing right-of-way or for which 
only minimal additional right-of-way is required; 
(5) minor expansion of existing toll plazas within existing right-of-way or for 
which only minimal additional right-of-way is required; or 
(6) disposal of excess right-of-way; or 
(7) approval for joint or limited use of right-of-way, where the proposed use 
does not have significant adverse impacts. 
(e) Any recommendation to the board that a proposed authority project be 
excluded from environmental review requirements may be accepted by the board if, 
from the information provided to the authority staff, it is determined that the 
proposed authority project meets the criteria for exclusion as set forth in this 
section. 
(f) The board may exclude other authority projects from environmental review if, 
from the required documentation, it is determined that the project meets the 
criteria for exclusion as set forth herein. 

sec.52.6.Early Coordination and Public Involvement. 
(a) Public Information and Notices: Publication in Spanish and English. If the 
authority undertakes an authority project in an area which includes a 
substantial Hispanic population, all required meeting and hearing notices shall 
be published in both English and Spanish, and all public meeting and hearing 
hand-outs and other project-related materials prepared specifically for public 
information purposes shall be provided in both English and Spanish.
(b) Early coordination. 
(1) The authority shall initiate coordination with appropriate agencies, local 
governmental entities, and the public early in the project planning and 
environmental development of authority projects. The authority shall be 
responsible for continuing coordination with local governmental entities and 
other applicable agencies throughout project planning.
(2) When applicable and appropriate, the authority shall follow the early 
coordination procedures prescribed for the Texas Review and Comment System 
(TRACS) as codified in 1 TAC Chapter 5, Subchapter B, which are intended, among 
other things, to foster intergovernmental cooperation and coordination. 
(3) Coordination under TRACS shall be initiated with appropriate regional review 
agencies (RRA) in the area of an authority project.
(4) Types of authority projects which are exempt from TRACS and RRA review 
include those which are excluded from environmental review as described in 
sec.52.5 of this title (relating to Projects Excluded from Environmental 
Reviews). 
(5) The TRACS procedures shall supplement the authority's traditional policy of 
direct coordination with other agencies and local governmental entities. 
(6) During early coordination, the authority shall be responsible for initiating 
a cooperative development process with local governmental entities to assist in 
the planning of authority projects and maintaining open lines of communication 
with appropriate offices of applicable agencies. The authority shall also 
provide project data and analyses to applicable agencies to assist in the 
determination of project impacts and mitigation plans. 
(c) Public Involvement: Public Meetings. Public involvement shall be encouraged 
as an important element of authority project planning. It shall be initiated by 
the authority and shall be consistent with the type and complexity of each 
authority project. 
(1) Meetings with affected property owners and residents may be held when 
authority projects require: 
(A) detours and/or a minimal amount of right-of-way acquisition, or temporary 
construction easements; and 
(B) a minor location or design revision after the appropriate environmental 
document has been approved and the public involvement requirements have been 
completed. If revisions are determined to be significant, the environmental 
document shall be revised and the opportunity for a public hearing shall be 
afforded to the public to address these revisions. 
(2) Public meetings for the general public, rather than only those property 
owners or residents described in paragraph (1) of this subsection, shall be held 
at a time and place convenient to the public in the vicinity of the authority 
project area: 
(A) as early as the authority determines feasible during project planning and 
development in order to keep the public informed, solicit public input and 
promote the free exchange of views and concerns regarding the proposed authority 
project; 
(B) during the drafting of the Draft Environmental Impact Statement as discussed 
in sec.52.8 of this title (relating to Environmental Impact Statements (EIS)). 
(3) Notices of public meetings shall be published in a newspaper having general 
circulation in the area of the authority project. The first notice shall be 
published no more than 21 days nor less than 15 days in advance of the meeting 
date. In addition, the authority shall, not less than 15 days before the public 
meeting, furnish a written notice of the meeting to the local governmental body 
of each county, city and town in which part of the authority project is located. 
At least seven days before the public meeting, the authority shall file with 
each governing body the applicable reports, plans and/or designs prepared for 
the authority project. 
(4) Notice of environmental assessment availability. As another method of public 
involvement, there shall be published in newspapers having general circulation 
in the area of the authority project, a notice of the availability of the 
environmental assessment to inform the public of its availability and advise 
where to obtain information concerning the authority project, and that any 
written comments should be furnished within a 30-day period. This notice shall 
be published only after the approval of the environmental assessment and only 
under very limited circumstances may be used in place of affording an 
opportunity for public hearing. 
(d) Public Involvement: Public Hearing. 
(1) Opportunity for public hearing. An opportunity for a public hearing shall be 
afforded for authority projects to determine local interest in holding a public 
hearing, when the authority project requires the acquisition of significant 
amounts of right-of-way; or when there is a substantial change in the layout or 
function of the connecting roadways or of the facility being improved; or the 
authority project will have a measurable adverse impact on abutting real 
property; or otherwise involves a substantial social, economic or environmental 
effect. 
(A) An opportunity for public hearing shall also be afforded for authority 
projects for which a FONSI is anticipated. The opportunity for a public hearing 
shall be afforded after the environmental assessment review is considered 
technically complete and initially approved by the authority. If deemed 
appropriate, the authority may decide to hold a public hearing and bypass 
affording a public hearing opportunity. 
(B) Two notices of the opportunity for public hearing shall be published in 
local newspapers having general circulation. The first notice shall be published 
at least 30 days in advance of the deadline date set by the authority for 
submission of written requests for holding a public hearing, and the second 
notice shall be published at least ten days prior to the deadline date. 
(C) No further action shall be taken to hold a public hearing, if at the end of 
the time set for affording an opportunity for a public hearing, no requests are 
received. The decision not to hold a hearing under this subchapter shall not 
relieve the authority from the obligation to hold a public hearing under 
Transportation Code, sec.361.102. 
(2) Public Hearing. Any public hearing held pursuant to this section shall be 
held, as a method of public involvement, to present project alternatives, to 
encourage and solicit public comment, and to involve the public in the 
identification of social, economic, and environmental impacts of an authority 
project, as well as impacts associated with any relocation of individuals, 
groups, or institutions. A public hearing shall be held if requested as provided 
in paragraph (1) of this subsection, and a public hearing shall also be held, 
whether or not so requested, for authority projects with substantial public 
interest, such as authority projects for which an EIS is prepared or other high-
profile projects, or when an authority project requires the taking of public 
land designated as a park, recreation area, wildlife refuge, historic site, or 
scientific area, as covered in the Parks and Wildlife Code, sec.sec.26.001 et 
seq. If a public hearing is required by this section, one or more public 
hearings may be held at any time after location and design studies are developed 
and a feasibility proposal, including appropriate environmental studies, are 
available for the public. 
(A) The public hearing notice shall contain, at a minimum, the following 
information: 
(i) time, date, and location of the hearing; 
(ii) description of the project termini, improvements, and right-of-way needs; 
(iii) reference to maps, drawings, and environmental studies and/or documents, 
and any other information available about the authority project that are 
available for public inspection at a designated location;
(iv) reference to the potential for relocation of residences and businesses and 
the availability of relocation assistance for displaced persons; 
(v) a statement that verbal and written comments may be presented for a period 
of ten days after the hearing; 
(vi) the address where written comments may be submitted; and 
(vii) the existence of any floodplain, wetland encroachment, or encroachment on 
a sole-source aquifer recharge zone by an authority project.
(B) Except for authority projects requiring the taking of public land designated 
as a park, recreation area, wildlife refuge, historic site, or scientific area, 
notice of the public hearing shall be given by the publication of two notices in 
local newspapers having general circulation. The first notice shall be published 
at least 30 days before the date of the hearing; the second notice shall be 
published not less than 15 days nor more than 21 days before the date of the 
hearing. 
(C) For authority projects requiring the taking of public land designated as a 
park, recreation area, wildlife refuge, historic site, or scientific area, 
notice of the public hearing shall be given in accordance with the Parks and 
Wildlife Code, sec.26.002. 
(D) The public shall have ten days after the close of a public hearing to submit 
written comments to the authority regarding a proposed authority project. 
(E) Public hearings shall be considered complete on the submission to the board 
of a public hearing summary and an analysis of comments received.
(F) At the option of the authority, any hearing held under this section may be 
combined with the hearing required by Transportation Code, sec.361.102. 
(e) Public Involvement: Media Releases. Following completion of the public 
involvement process, project specific planning and development decisions can be 
publicized through press releases in order to keep the public informed of any 
new or public continuing issues. 
(f) Public involvement on projects where a public hearing is not required by 
law. For projects for which a public hearing is not required by law, the 
authority will hold a public hearing in accordance with paragraph (2) of this 
subsection if at least 10 individuals request a hearing. 

sec.52.7. Environmental Assessment.
(a) Preparation. For authority projects in which the extent of impacts is not 
readily discernible as to either magnitude or significance, an environmental 
assessment (EA) shall be prepared by the authority to determine the nature and 
extent of environmental impacts, with either a finding of no significant impact 
anticipated or an environmental impact statement required. An EA is not 
necessary if the authority has decided to prepare an environmental impact 
statement. 
(b) Coordination and consultation. For authority projects that require an 
environmental assessment, the authority shall, at the earliest appropriate time, 
begin coordination and consultation with interested agencies, local political 
subdivisions, and others as prescribed in sec.52.6 of this title (relating to 
Early Coordination and Public Involvement). The purpose of this coordination is 
to achieve the following objectives: 
(1) definition of the scope of the authority project; 
(2) identification of any alternatives to the proposed actions, including the 
no-build alternative; 
(3) determination as to which aspects of the proposed actions have potential for 
environmental impact; 
(4) identification of measures and alternatives which might mitigate adverse 
environmental impacts; and 
(5) identification of other environmental review and consultation requirements 
which should be prepared concurrently. 
(c) Notice. As required in sec.52.6(c)(4) of this title, a notice of EA shall be 
published advising the public where it may be obtained or reviewed. 
(d) Authority determination. If, at any point in the environmental review 
process, the authority determines that the authority project may have a 
significant impact on the environment, the preparation of an environmental 
impact statement (EIS) shall be required. 
(e) Finding of No Significant Impact (FONSI). The authority, after its 
examination of the EA, proposed mitigation measures, and any public hearing 
statement or comments received regarding the EA, shall make, if no significant 
impacts are identified, a separate written finding of no significant impact 
(FONSI), incorporating the environmental assessment and any other appropriate 
environmental documents and agency consultations and coordinations. A FONSI 
completes the environmental and public involvement process for an authority 
project as required by sec.52.6 of this title. 
(f) Notification of FONSI. After the FONSI has been issued, a notice of the 
availability of the FONSI shall be published in the Texas Register. Notification 
shall also be given to the local media through a press release. 

sec.52.8.Environmental Impact Statements (EIS).
(a) Required. An EIS is required for authority projects in which there are 
likely to be significant environmental impacts. The preparation of the EIS shall 
occur in two stages: 
(1) the draft EIS or DEIS; and 
(2) the final EIS or FEIS. (A supplemental EIS may be required in some cases.) 
(b) Not required. If environmental documents indicate that significant impacts 
to the environment will not occur, an EIS is not required.
(c) Notice of intent. Prior to the preparation of an EIS, a notice of intent 
(NOI) to prepare an EIS shall be prepared. The initiation of the NOI shall begin 
during the early coordination process with agencies, as described in sec.52.6(b) 
of this title (relating to Early Coordination and Public Involvement). 
(1) The NOI shall: 
(A) describe the authority project; 
(B) identify significant impacts on the human environment; and 
(C) identify any preliminary alternatives under consideration by the authority. 
(2) After review and approval of the NOI by the authority, it shall be sent to 
applicable agencies for their early review and comment. Any comments received 
shall be used as the basis for the DEIS, as described in subsection (d) of this 
section. 
(3) A summary of the NOI shall also be published in the Texas Register and in 
local newspapers of general circulation. 
(d) Draft Environmental Impact Statement (DEIS). The DEIS shall evaluate all 
reasonable alternatives to the authority project, including a "no-build" 
alternative; discuss the elimination of other alternatives, if applicable; 
summarize the studies, reviews, consultations, and coordination required by law 
to the extent appropriate; and designate a preferred alternative, if 
appropriate. 
(1) The authority shall approve the DEIS for distribution upon determining that 
the DEIS complies with these requirements, the requirements of NEPA and other 
applicable law, and shall cause the DEIS to be printed in sufficient number to 
supply review copies. 
(2) The DEIS shall be circulated for comment after a notice is published in the 
Texas Register and in newspapers of general circulation in the locality of the 
authority project. The notice shall describe the authority project and indicate 
a comment period of not less than 45 days from the date of such notice, and 
identify where comments are to be sent. 
(3) The DEIS shall be transmitted at no charge to state agencies through the 
TRACS system, including the department, and directly to applicable federal 
agencies. 
(4) The DEIS shall be made available to interested public officials, interest 
groups, and members of the public at the request of any such group or 
individuals. 
(5) A fee which is not more than the actual cost of reproduction of the DEIS may 
be charged for any copies requested. 
(6) Copies of the DEIS shall be distributed to appropriate locations convenient 
to the public for review. 
(7) A public hearing shall be held for an authority project for which a DEIS is 
prepared. Notice of such public hearing shall be in accordance with sec.52.6(d) 
of this title. 
(8) The DEIS shall be made available to the general public at the authority 
offices a minimum of 15 days in advance of the public hearing for authority 
projects. 
(e) Final Environmental Impact Statement (FEIS). After the DEIS has been 
circulated and at least one public hearing has been conducted, and after all 
comments have been reviewed, an FEIS shall be prepared by the authority. 
(1) The FEIS shall: 
(A) identify the preferred alternative and evaluate all reasonable alternatives 
considered; 
(B) discuss substantive comments received on the DEIS, specifically including 
any comments of the department, and responses to those comments;
(C) summarize public involvement and describe the mitigation measures that are 
to be incorporated into the authority project; 
(D) document compliance, to the extent possible, with all applicable 
environmental laws, or provide reasonable assurance that those requirements can 
be met; and 
(E) identify those issues and the consultations and other efforts made to 
resolve interagency disagreements (every reasonable effort shall be made to 
resolve interagency disagreements.) 
(2) The authority shall indicate approval of the FEIS by signing and dating the 
cover page. 
(3) The initial printing of the FEIS shall be in sufficient quantities to meet 
the request for copies which can reasonably be expected from agencies, 
organizations, and individuals. 
(4) A fee which is not more than the actual cost of reproduction of the FEIS may 
be charged for any copies requested. 
(5) Copies of the FEIS may also be placed in appropriate designated public 
locations, such as local governmental offices, libraries, or other public 
institutions. 
(6) A notice detailing the availability of the FEIS shall be published in the 
Texas Register and in local newspapers. 
(A) The notice shall include information about obtaining copies of the FEIS. 
(B) The public and interested organizations shall have 30 days following 
publication of the notice in the Texas Register to submit comments.
(7) Following approval of the FEIS, it shall be made available to agencies which 
made substantive comments on the DEIS and to the department; however, in the 
event the FEIS is voluminous, the authority may provide for alternative 
circulation such as notifying agencies of the availability of the FEIS, and by 
providing a method for these agencies to request a copy. 
(8) The authority shall complete and sign a Record of Decision (ROD) no sooner 
than 30 days after publication of the availability of the FEIS Notice in the 
Texas Register. Until any required ROD has been signed, no further approvals may 
be given except for administrative activities taken to secure further authority 
project funding. The ROD shall: 
(A) present the basis for the decision and summarize any mitigation measures; 
and 
(B) be published in the Texas Register. 
(f) Reevaluations. An evaluation to determine whether a supplement to the DEIS 
or a new DEIS is needed shall be prepared by the authority if an acceptable FEIS 
has not been submitted within three years from the date of circulation of the 
DEIS. The reevaluation shall: 
(1) not be circulated for agency review, although resource agency coordination 
may be required; 
(2) be required before further approvals may be granted if major steps to 
advance the action such as authority to undertake final design or acquire 
significant portions of right-of-way, or approval of the plans, specifications, 
and estimates have not occurred within three years after the approval of the 
FEIS, supplemental EIS, or the last major authority approval. 
(g) Supplemental Environmental Impact Statements. A DEIS or FEIS may be 
supplemented at any time. 
(1) An EIS shall be supplemented whenever the authority determines that: 
(A) changes to the project would result in significant environmental impacts 
that were not evaluated in the EIS; 
(B) new information or circumstances relevant to environmental concerns bearing 
on the proposed action or its impacts would result in significant environmental 
impacts not evaluated in the EIS. 
(2) A supplemental EIS shall not be necessary when:
(A) changes in the authority's project, new information, or new circumstances 
result in a lessening of adverse environmental impacts evaluated in the EIS 
without causing other environmental impacts that are significant and were not 
evaluated in the EIS; 
(B) the authority decides to approve an alternative which was fully evaluated in 
the approved FEIS but not identified as the preferred alternative. In such 
cases, the authority shall prepare a revised ROD and shall publish such revised 
ROD in the Texas Register. 
(3) If there is any uncertainty regarding the significance of new impacts, the 
authority shall develop appropriate environmental studies to assess the impacts 
of the changes, new information, or new circumstances.
(4) If the authority determines, based on studies, that a supplemental EIS is 
not needed, it shall so indicate in the project record.
(5) A supplemental EIS shall be developed using the same process and format as 
an original EIS, except that early coordination shall not be required. 
(6) A supplemental EIS may be required to address issues of limited scope, such 
as the extent of proposed mitigation, or the evaluation of location or design 
variations for a limited portion of an overall authority project. In this 
situation, the preparation of the supplemental EIS shall not necessarily: 
(A) prevent the granting of new approvals; 
(B) require the withdrawal of previous approvals; or 
(C) require the suspension of project activities for any activity not directly 
affected by the supplement. 
(h) Emergency Action Procedures and Compliance with Other Regulations. 
(1) Any request for deviations from the procedures outlined in this subchapter 
because of emergency circumstances shall be handled on a project-by-project 
basis. Emergency circumstances shall include natural disasters such as floods, 
hurricanes, tidal waves, earthquakes, severe storms, or catastrophic failures of 
any kind. 
(2) The final environmental documentation should detail compliance with 
requirements of state law and regulations, and applicable federal law and 
regulations to the extent of such compliance. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on April 17, 1998.
TRD-9805437
Bob Jackson
Acting General Counsel
Texas Turnpike Authority Division
Earliest possible date of adoption: May 31, 1998
For further information, please call: (512) 463-8630