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

TITLE 1. ADMINISTRATION
PART XII. Advisory Commission on State Emergency Communications 
CHAPTER 251. Regional Plans - Standards
1 TAC sec.251.7
The Advisory Commission on State Emergency Communications (ACSEC) adopts an 
amendment to sec.251.7, concerning the inclusion of third-party software 
applications into the 9-1-1 integrated workstation environment through expanded 
guidelines and provisions, with changes to the proposed text as published in the 
March 13, 1998, issue of the Texas Register (23 TexReg 2643).
The rule is adopted in order to provide guidelines for allowing third-party 
applications which will enable increased functionality of the 9-1-1 workstation 
to more expeditiously handle emergency calls and the subsequent responses. This 
is important as technological changes are occurring, as well as the increasing 
volume of callers who cannot accurately identify their location (e.g. cellular 
callers). 
The following comments were received in favor of the amendment: 
The Fayette County, County Judge's Office, supports the proposed changes stating 
that the rule provides the means for securing the essential 9-1-1 call-taking 
features while continuing to allow 9-1-1 services to advance along with new 
technology. He further states that any consideration of integrating such 
enhancements with the 9-1-1 system be thoroughly reviewed, documented, and 
tested before deployment. 
The Fayette County, 9-1-1 Addressing Office, supports the proposed changes 
adding that 9-1-1 call-taking equipment plays a very important role and that the 
equipment should be closely monitored in order to maintain its integrity. He 
further adds that any additional services above and beyond essential 9-1-1 
services should be properly reviewed and meticulously tested prior to 
integration with any 9-1-1 equipment. 
The Capital Area Planning Council supports the proposed changes stating that it 
is in the best interest of the state and local government, both financially and 
operationally, to allow the integration of certain public safety supported 
software programs into the systems. The Council reported that in cooperation 
with the ACSEC, a successful test of this technology was completed by 
integrating seven different software programs into an operational 9-1-1 system 
using the integrated workstation. The test proved that the systems are robust 
enough to support the multi-functions without interference in the day-to-day 
operation of 9-1-1. 
The South East Texas Regional Planning Commission supports the proposed changes 
stating that the advantage behind integrated workstation is improving efficiency 
and accuracy of 9-1-1 call handling by integrating numerous emergency service 
duties and call handling functions into a single keyboard and display screen. 
Elimination of duplicate equipment would significantly reduce the amount of 
overcrowding already facing many answering sites. 
LifeSafety Solutions, Inc., supports the proposed changes stating that it is in 
the business of expanding and personalizing 9-1-1 call information. The 
company's product, 9-1-1 Plus, operates in a Microsoft environment through a 
private intranet which provides for ease of integration. In order for a 9-1-1 
Center to receive the expanded information, LifeSafety Solutions provides all 
hardware, software and telecommunications network at no cost to the governmental 
entity. 
The agency agrees that provisions will keep abreast with changing technology and 
provide enhancement of 9-1-1 systems for more accurate location information. 
Upon review of the comments, the Commission also made minor non-substantive 
clarifications to include statements specifying that the rule applies to 9-1-1 
Emergency Communication Districts only if they are receiving equalization 
surcharge funds from the ACSEC; that provides for a minimum testing period of 
one week prior to the cut-over of the newly integrated systems; that the 
introduction of third-party software should not lead to the degradation of 
equipment or services subsequent to the installation of the ancillary software, 
and that Commission consideration of related funding issues is a separate 
matter. 
The amendment is adopted under Texas Health and Safety Code, Chapter 771, 
sec.sec.771.051, 771.056, and 771.0057, which authorizes the ACSEC to develop 
and amend a regional plan for the establishment and operation of 9-1-1 services 
throughout a 9-1-1 region that meets the standards established by the Commission 
according to procedures determined by the Commission.

sec.251.7. Guidelines For Implementing Integrated Services.
(a) Definitions. When used in this rule, the following words and terms shall 
have the meanings identified in paragraphs (1)-(13) of this subsection, unless 
the context and use of the word or terms clearly indicates otherwise: 
(1)-(4) (No change.) 
(5) Address Maintenance Plan. A plan that identifies a cost effective program 
for the maintenance of addressing in a county. For regional planning 
commissions, also referred to as a council of governments (COG) , this plan is 
part of a regional plan as described by the Texas Health and Safety Code, 
Chapter 771.
(6) (No change.) 
(7) Emergency Communications District (District) . A public agency or group of 
public agencies acting jointly that provided 9-1-1 service before September 1, 
1987, or that had voted or contracted before that date to provide that service; 
or a district created under Texas Health and Safety Code, Chapter 772, 
Subchapters B, C, or D. 
(8)-(10) (No change.) 
(11) Regional Planning Commission. A commission established under Local 
Government Code, Chapter 391, also referred to as a council of governments 
(COG). 
(12)-(13) (No change.) 
(b) Policy and Procedures. As authorized by Texas Health and Safety Code, 
Chapter 771, the ACSEC may impose 9-1-1 emergency service fees and equalization 
surcharges to support the planning, development, and provision of 9-1-1 service 
throughout the state of Texas. The implementation of such service involves the 
procurement, installation and operation of equipment designed to either support 
or facilitate the delivery of an emergency call to an appropriate emergency 
response agency. In addition, the ACSEC has funded addressing projects 
throughout the state to allow for the implementation of Automatic Location 
Identification (ALI) level of service. In the funding of such projects, it has 
been the policy of the ACSEC to fund geographic information systems and the 
development of digital maps to support such activities. The ACSEC recognizes the 
rapidly changing telecommunications environment in wireline and wireless 
services and its impact on 9-1-1 emergency services. Integration of new 
technology and 9-1-1 functionality are enhancing and facilitating the delivery 
of an emergency call. It is the policy of the ACSEC that all 9-1-1 emergency 
calls for service be handled at the highest level of service available. In 
accordance with this policy, the following policies and procedures shall apply 
to the procurement, installation, and implementation of integrated services 
funded in part or in whole by the 9-1-1 funds referenced in subsection (a)(2) of 
this section. Prior to money being considered for allocation for implementation 
of integrated services for a county system, a COG, and/or District receiving 
equalization surcharge funds from the ACSEC shall meet the following 
requirements listed in paragraphs (1)-(4) of this subsection: 
(1) Integrated Services. 
(A) Personal Computer (PC) based Integrated Workstation (IWS) 9-1-1 call-taking 
equipment has the capability of expanding the traditional 9-1-1 Automatic Number 
Identification (ANI) and Automatic Location Identification (ALI) feature 
functionality to allow for additional third-party public safety software 
applications. The ACSEC is supportive of such advancement in emergency services 
call-taking capabilities; however, to ensure the integrity of 9-1-1 is 
maintained, only the following features listed in clauses (i)-(x) of this 
subparagraph are eligible integrated services: 
(i) Automatic Number Identification; 
(ii) Automatic Location Identification; 
(iii) Expanded and/or Supplemental Location Information; 
(iv) Call Recording and Playback ; 
(v) Telecommunication Devices for the Deaf (TDD/TTY); 
(vi) Paging; 
(vii) Texas Law Enforcement Teletype Services (TLETS); 
(viii) Computer Aided Dispatch Gateway; 
(ix) Graphical/Mapping Displaying of Location and; 
(x) Call Handling Protocols. 
(B) Integrated services other than the applications listed in clauses (i)-(x) of 
subparagraph (A) must have a demonstrated applicability to the direct provisions 
of delivering 9-1-1 and emergency call-taking services. Services not directly 
related to 9-1-1 call delivery, such as administration, information management, 
and entertainment will not be authorized for integration into the IWS 9-1-1 
call-taking equipment. 
(C) Prior to integrating and deploying the expanded third-party applications 
onto a IWS 9-1-1 call-taking environment, the following listed in clauses (i)-
(iii) of this subparagraph must be demonstrated to the Commission to ensure the 
stability and reliability of the 9-1-1 system: 
(i) Documented "Lab" testing shall be completed by the IWS Vendor and councils 
of governments demonstrating the successful integration of the authorized third-
party applications. Test scenarios should include documentation of the operating 
system requirements, detailed functionality results as each application is 
integrated and evaluated independently, and load testing results of all systems 
operating together on the IWS workstation.
(ii) Baseline memory usage of the operating system should maintain the "80/20" 
performance rule, thereby demonstrating that 80% of the total memory is 
available to the operating system applications, while 20% of the total memory 
remains unused. A minimum testing period of one week prior to the cut over of 
the newly integrated system is required. 
(iii) Documented "Live" testing in a PSAP shall also be completed by the IWS 
Vendor with cooperation and coordination by the COG or District, demonstrating 
the successful integration of the authorized third-party applications. Test 
scenarios should include documentation of the operating system requirements, 
detailed functionality results as each application is integrated and evaluated 
independently, and load testing results of all systems operating on the IWS 
workstation, as well as a standardized set of basic call-taking functions. The 
installation and use of third-party software should not lead to the degradation 
of equipment or services subsequent to the installation of the ancillary 
software.
(D) Operating procedures should be established by the COG and/or District and 
security measures taken and demonstrated to ensure that non-ACSEC-approved 
third-party software applications cannot be integrated into the IWS platform. 
(E) Documentation of all testing shall be provided to the ACSEC prior to funding 
of any integrated services. 
(2) Graphical Display. Prior to the implementation of graphical display of 
location information for a county system, a (COG) and/or District shall meet the 
following requirements listed in subparagraphs (A)-(C) of this paragraph : 
(A)-(C) (No change.) 
(3) (No change.) 
(4) Annual budgeted costs associated with authorized integrated services, as 
outlined in this rule, shall be monitored by the ACSEC staff for consistency 
with approved maintenance plans and systems costs. Such costs that are 
determined by ACSEC staff to not be consistent with the approved strategic plan, 
shall be presented for review and approval by the Commission.
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 11, 1998.
TRD-9807641
James D. Goerke 
Executive Director
Advisory Commission on State Emergency Communications
Effective date: May 31, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 305-6933

TITLE 16. ECONOMIC REGULATION
PART I. Railroad Commission of Texas
CHAPTER 3. Oil and Gas Division
Conservation Rules and Regulations
16 TAC sec.3.30
The Railroad Commission of Texas (RRC) adopts new sec.3.30, relating to a 
Memorandum of Understanding (MOU) between the Texas Natural Resource 
Conservation Commission (TNRCC) and the RRC regarding jurisdiction over oilfield 
wastes. The section is adopted with changes to the proposed text published in 
the December 26, 1997, issue of the Texas Register (22 TexReg 12647).
The MOU refines and clarifies the division of jurisdiction between the TNRCC and 
the RRC with regard to wastes generated in connection with oil and gas 
exploration, development, and production activities. The original MOU between 
the agencies regarding the division of jurisdiction over wastes generated in 
connection with oil and gas exploration, development, and production took effect 
on January 1, 1982. The MOU was revised effective December 1, 1987, to reflect 
legislative clarification of the RRC's jurisdiction over oil and gas wastes and 
the Texas Water Commission's (predecessor to TNRCC) jurisdiction over industrial 
and hazardous waste. The 1987 version of the MOU was adopted by reference at 
sec.3.8(i) (relating to water protection). This adoption-by-reference is being 
repealed in a separate rulemaking. The MOU is being set forth in new sec.3.30 in 
order to provide for wider distribution of the text of the MOU. 
Since the MOU was last updated in December 1987, the agencies have gained 
experience in applying the terms of the MOU and their underlying statutory 
authority. In addition, since 1987, the Texas Water Commission, the Texas Air 
Control Board, and portions of the Texas Department of Health have been combined 
to form the TNRCC. The agencies have determined that further refinement and 
revision of the MOU is necessary to reflect experience gained in application of 
the 1987 MOU and to reflect jurisdiction of the newly created TNRCC over 
industrial and municipal wastes. 
This new sec.3.30 is being adopted contemporaneously with TNRCC's new 30 Texas 
Administrative Code sec.7.117, which is a duplicate version of this MOU. The 
response to comments in this preamble was developed jointly by RRC and TNRCC. 
One commenter expressed its agreement with the definition of "natural gas or 
natural gas liquids processing plant" in subsection (b)(1)(E) and requested that 
a definition of "pressure maintenance plant or repressurizing plant" equivalent 
to that contained in sec.3.98 of this title (relating to management of hazardous 
oil and gas waste) be included in new sec.3.30 for purposes of clarification. 
The agencies have included the requested clarifying definition in subsection 
(b)(1)(E). 
One commenter recommended that the first sentence of subsection (b)(2)(A) be 
revised to include a clarifying statement regarding the RRC's jurisdiction over 
wastes from crude oil and natural gas pipelines. For purposes of clarification, 
the agencies have repeated language found elsewhere in the MOU regarding the 
RRC's jurisdiction over wastes from crude oil and natural gas pipelines in the 
first sentence of subsection (b)(2)(A). 
One commenter recommended that a new sentence be added to subsection (d)(2) 
which provides that the term "oil and gas waste" includes non-hazardous waste 
generated from oil and gas exploration, development, and production operations. 
The commenter felt that this language would further clarify that the RRC's 
jurisdiction extends to wastes from crude oil and natural gas pipeline 
operations. The agencies generally agree that additional language could be added 
to this provision for purposes of clarification. However, the agencies do not 
agree that the language recommended by the commenter would accomplish this goal 
as it could create the impression that the RRC does not have jurisdiction over 
hazardous wastes generated from natural gas and crude oil pipelines. Therefore, 
the agencies have added a sentence to subsection (d)(2) which clarifies that the 
term oil and gas waste includes wastes associated with transportation of crude 
oil and natural gas by pipeline. Similar language is found elsewhere in the MOU. 
It should be noted, however, that RRC rules do not authorize injection of 
hazardous oil and gas waste into Class II injection wells. 
One commenter recommended that the language found in proposed subsection 
(e)(1)(D) regarding jurisdiction over wastes generated at warehouses, pipeyards, 
or equipment storage facilities also be included in subsection (e)(6) to clarify 
that the provisions of subsection (e)(1)(D) also apply to a warehouse used to 
serve a pipeline company's operations. The agencies agree that the proposed MOU 
should be clarified to reflect the fact that the provisions of subsection 
(e)(1)(D) are broadly applicable to the various types of activities regulated by 
the RRC. To avoid creating the impression that subsection (e)(1)(D) applies only 
to wells or pipelines (for example, it could also apply to a gas plant), the 
agencies have moved the provisions of proposed subsection (e)(1)(B)-(F) to 
subsection (e)(11) and renumbered proposed subsection (e)(11) as subsection 
(e)(12). The agencies have also added a sentence that clarifies that the term 
"oil and gas exploration, development, and production" includes transportation 
of crude oil and natural gas by pipeline. 
One commenter noted that subsection (e)(6)(A) could be interpreted to extend RRC 
jurisdiction into the area of natural gas distribution and that TNRCC should 
continue to have jurisdiction over wastes generated at natural gas distribution 
systems. The commenter expressed the opinion that extending RRC jurisdiction 
over these facilities will limit opportunities for recycling because of the need 
to keep wastes regulated by the RRC segregated from wastes regulated by TNRCC. 
The agencies disagree with this commenter. Under Texas Natural Resources Code, 
sec.91.101, the RRC has jurisdiction over transportation of natural gas prior to 
use as a fuel. The agencies have always interpreted RRC jurisdiction to extend 
to gas distribution systems inside city gates. The agencies are unclear as to 
why this commenter perceives that this jurisdictional scheme minimizes 
opportunities for recycling or efficient waste management. For example, the 
commenter specifically mentioned used oil and used oil filters as a class of 
waste that would be difficult to manage if the RRC were to have jurisdiction 
over wastes from gas distribution systems. However, specific provision has been 
made in TNRCC rules for recycling of used oil filters under RRC jurisdiction. 
Under 30 Texas Administrative Code sec.330.1189, such filters can be sent to a 
TNRCC-registered facility, provided they are packaged in accordance with TNRCC 
rules. Nothing in either RRC or TNRCC rules prohibits combining used oil or used 
oil filters regulated by the RRC with those regulated by TNRCC. More generally, 
the MOU itself removes barriers to management of wastes that are chemically and 
physically similar to those regulated by one agency (TNRCC or RRC) at a facility 
permitted or otherwise authorized to accept such wastes by the other agency (RRC 
or TNRCC). No change was made to the rule in response to these comments. 
Based upon further discussions with this commenter, the agencies learned that 
this commenter operates facilities where both oil and gas wastes under RRC 
jurisdiction, and industrial wastes under TNRCC jurisdiction, are generated and 
combined for management. This commenter was concerned that the MOU would 
preclude such combination of RRC-regulated and TNRCC-regulated wastes. Under the 
MOU, this commenter could combine RRC- regulated and TNRCC-regulated wastes and 
manage or dispose of the combined waste at a facility permitted by TNRCC if the 
facility's permit authorizes receipt and management or disposal of that 
particular type of waste and any authorization required from the RRC required 
under subsection (f)(3) is obtained. 
One commenter expressed concern that the MOU proposed to give TNRCC jurisdiction 
over wastes from facilities where a company trains its own employees. This 
commenter recommended that the RRC have jurisdiction over such facilities. The 
agencies disagree with this comment. First, this commenter may have a 
misconception about the status quo. Under current agency interpretation, the 
TNRCC has jurisdiction over wastes from facilities where oilfield workers are 
trained. The agencies do not perceive a reason to change the status quo. Where 
wastes used at training facilities are chemically and physically similar to RRC-
regulated wastes, the MOU provides a simple mechanism for obtaining approval to 
dispose of the wastes at RRC-regulated facilities. This waste disposal option 
should address most of the issues associated with TNRCC regulation of these 
facilities. No change has been made in response to this comment. One commenter 
recommended that the term "commercial service company facility" be revised by 
changing "exploration, development, OR production of oil or gas or geothermal 
resources" to "exploration, development, AND production of oil or gas or 
geothermal resources" to be consistent with sec.sec.3.8 and 3.98 (relating to 
water protection and standards for management of hazardous oil and gas waste). 
The agencies disagree. The agencies understand this commenter to be referring to 
the definition of oil and gas waste found in sec.sec.3.8 and 3.98. In that 
definition, the conjunction "and" is appropriate because the definition lists 
various types of waste that are all considered oil and gas waste. Substitution 
of the conjunction "and" for "or" in the definition of commercial service 
company facility would require that the company manage wastes from all three 
activities to be a commercial service company facility. Management of wastes 
associated with any one of the listed activities--exploration, development, or 
production--is sufficient to make a facility a commercial service company 
facility if other criteria in the definition are met. No change was made to the 
rule in response to this comment 
One commenter recommended that subsection (e)(3)(A) be revised to provide that 
stormwater from bulk storage facilities handling both crude oil and refined 
product not fall under TNRCC jurisdiction if the refined product is stored only 
for use at the facility. The agencies agree and have revised subsection 
(e)(3)(A) in accordance with this commenter's recommendation. 
Subsection (f)(3)(D) of the proposed MOU has been revised by the agencies to 
clarify that domestic septage collected in portable toilets can be treated at a 
facility permitted by TNRCC to accept such waste, not simply any facility 
permitted by TNRCC for disposal, incineration, or land application for 
beneficial use of sewage sludge or wastewater treatment sludge. 
One commenter requested that subsection (f)(3)(E) be more broadly worded to 
encompass all wastes that fall under the RRC definition of inert waste. Based on 
further conversations with this commenter, the agencies learned that the 
commenter was concerned that the provisions of subsection (f)(3)(E) might be 
construed as narrowing or limiting the broad language of subsection (f)(3)(A) 
and (B). The agencies did not intend subsection (f)(3)(E) to limit or otherwise 
narrow subsection (f)(3)(A) and (B). The agencies have further determined that 
subsection (f)(3)(E) is unnecessary in light of subsection (f)(3)(B). Therefore, 
subsection (f)(3)(E) has been deleted and subsections (f)(3)(F) through (I) 
relettered accordingly. 
Several minor, non-substantive changes have also been made. In subsections 
(b)(1)(B), (b)(1)(C), and (b)(1)(D), references to Texas Health and Safety Code, 
sec.361.003(a) have been corrected to read Texas Health and Safety Code, 
sec.361.003(34) and a reference in subsection (c)(1) to Texas Health and Safety 
Code, sec.361.003 has been changed to Texas Health and Safety Code, 
sec.361.003(12). The agencies have also deleted subsection (d)(3)(C) and (D) and 
replaced them with a parenthetical reference to the Texas Department of Health's 
jurisdiction over naturally occurring radioactive material (NORM) in subsection 
(d)(3). Subsection (d)(3)(C) and (D) were non-substantive and dealt with 
regulations of the Texas Department of Health, an agency that is not a party to 
this MOU. 
The following groups or associations commented on proposed new sec.3.30: Texas 
Oil and Gas Association. 
New sec.3.30 is adopted under Texas Water Code, sec.26.131, which gives the RRC 
jurisdiction over pollution of surface or subsurface waters from oil and gas 
exploration, development, and production activities; Texas Water Code, 
sec.sec.27.001-27.105, which authorize the RRC to adopt and enforce rules 
relating to injection wells; Texas Water Code, sec.sec.29.001-29.053, which 
authorize the RRC to regulate oil and gas waste haulers; Texas Natural Resources 
Code, sec.81.052, which authorizes the RRC to adopt all necessary rules for 
governing persons and their operations under the jurisdiction of the RRC under 
sec.81.051; Texas Natural Resources Code, sec.85.042(b), which authorizes the 
RRC to adopt and enforce rules for the prevention of actual waste of oil or 
operations in the field dangerous to life or property; Texas Natural Resources 
Code, sec.85.201, which authorizes the RRC to make and enforce rules for the 
conservation of oil and gas and prevention of waste of oil and gas; Texas 
Natural Resources Code, sec.85.202, which authorizes the RRC to adopt rules to 
prevent waste of oil and gas in producing operations; Texas Natural Resources 
Code, sec.91.101, which authorizes the RRC to adopt rules relating to the 
various oilfield operations, including the discharge, storage, handling, 
transportation, reclamation, or disposal of oil and gas waste; and Texas Natural 
Resources Code sec.91.602, which authorizes the RRC to adopt and enforce rules 
relating to the generation, transportation, treatment, storage, and disposal of 
oil and gas hazardous waste. 
The Texas Water Code, sec.26.131, sec.sec.27.001-27.105, and sec.sec.29.001-
29.053; and Texas Natural Resources Code, sec.sec.81.052, 85.042(b), 85.201, 
85.202, 91.101, and 91.602 are affected by new sec.3.30. 

sec.3.30. Memorandum of Understanding Between the Railroad Commission of Texas 
(RRC) and the Texas Natural Resource Conservation Commission (TNRCC). 
(a) Need for agreement. 
(1) Section 10 of House Bill 1407, 67th Legislature, 1981, which appeared as a 
footnote to the Texas Solid Waste Disposal Act, Texas Civil Statutes, art. 4477-
7, provides as follows: On or before January 1, 1982, the Texas Department of 
Water Resources, the Texas Department of Health, and the Railroad Commission of 
Texas shall execute a memorandum of understanding that specifies in detail these 
agencies' interpretation of the division of jurisdiction among the agencies over 
waste materials that result from or are related to activities associated with 
the exploration for and the development, production, and refining of oil or gas. 
The agencies shall amend the memorandum of understanding at any time that the 
agencies find it to be necessary.
(2) The original Memorandum of Understanding (MOU) between the agencies became 
effective January 1, 1982. The MOU was revised effective December 1, 1987, to 
reflect legislative clarification of the Railroad Commission's jurisdiction over 
oil and gas wastes and the Texas Water Commission's (successor to the Texas 
Department of Water Resources) jurisdiction over industrial and hazardous 
wastes. 
(3) The agencies have determined that the revised MOU that became effective on 
December 1, 1987, should again be revised to further clarify jurisdictional 
boundaries and to reflect legislative changes in agency responsibility and the 
combination of the Texas Water Commission, the Texas Air Control Board, and 
portions of the Texas Department of Health to form the Texas Natural Resource 
Conservation Commission. 
(b) General agency jurisdictions. 
(1) Texas Natural Resource Conservation Commission (TNRCC).
(A) The TNRCC has jurisdiction over solid waste under Chapter 361 of the Texas 
Health and Safety Code, sec.sec.361.001-361.754. The TNRCC's jurisdiction 
encompasses both hazardous and nonhazardous, industrial and municipal, solid 
wastes. 
(B) Under Texas Health and Safety Code, sec.361.003(34), solid waste under the 
jurisdiction of the TNRCC is defined to include "garbage, rubbish, refuse, 
sludge from a waste treatment plant, water supply treatment plant, or air 
pollution control facility, and other discarded material, including solid, 
liquid, semisolid, or contained gaseous material resulting from industrial, 
municipal, commercial, mining, and agricultural operations and from community 
and institutional activities." 
(C) Solid waste is further defined in Texas Health and Safety Code, 
sec.361.003(34), to exclude "material which results from activities associated 
with the exploration, development, or production of oil or gas or geothermal 
resources and other substance or material regulated by the Railroad Commission 
of Texas pursuant to Section 91.101, Natural Resources Code...."
(D) In addition, Texas Health and Safety Code, sec.361.003(34), defines the term 
solid waste to include the following until the United States Environmental 
Protection Agency (EPA) delegates its authority under the Resource Conservation 
and Recovery Act, 42 United States Code (U.S.C.) sec.6901, et seq., (RCRA) to 
the RRC: "waste, substance or material that results from activities associated 
with gasoline plants, natural gas or natural gas liquids processing plants, 
pressure maintenance plants, or repressurizing plants and is a hazardous waste 
as defined by the administrator of the EPA...." 
(E) After delegation of RCRA authority to the Railroad Commission of Texas 
(RRC), the definition of solid waste (which defines TNRCC's jurisdiction) will 
not include hazardous wastes generated at natural gas or natural gas liquids 
processing plants, or reservoir pressure maintenance or repressurizing plants. 
The term natural gas or natural gas liquids processing plant refers to a plant 
the primary function of which is the extraction of natural gas liquids from 
field gas or fractionation of natural gas liquids. The term does not include a 
separately located natural gas treating plant for which the primary function is 
the removal of carbon dioxide, hydrogen sulfide, or other impurities from the 
natural gas stream. A separator, dehydration unit, heater treater, sweetening 
unit, compressor, or similar equipment is considered a part of a natural gas or 
natural gas liquids processing plant only if it is located at a plant the 
primary function of which is the extraction of natural gas liquids from field 
gas or fractionation of natural gas liquids. Further, a pressure maintenance or 
repressurizing plant is a plant for processing natural gas for reinjection (for 
reservoir pressure maintenance or repressurization) in a natural gas recycling 
project. A compressor station along a natural gas pipeline system or a pump 
station along a crude oil pipeline system is not a pressure maintenance or 
repressurizing plant. 
(2) Railroad Commission of Texas (RRC). 
(A) Generally, under Texas Natural Resources Code, Title 3, and Texas Water 
Code, Chapter 26, wastes (both hazardous and nonhazardous) resulting from 
activities associated with the exploration, development, or production of oil or 
gas or geothermal resources, including transportation of crude oil or natural 
gas by pipeline, and other activities regulated by the RRC are under the 
jurisdiction of the RRC. These wastes are termed "oil and gas wastes." In 
compliance with Texas Health and Safety Code, sec.361.025 (concerning exempt 
activities), a list of activities that generate wastes that are subject to the 
jurisdiction of the RRC is found at sec.3.8(a)(30) of this title (relating to 
water protection) and at 30 Texas Administrative Code sec.335.1 (concerning 
definitions), which contains a definition of "activities associated with the 
exploration, development, and production of oil or gas or geothermal resources." 
This MOU provides further guidance regarding the agencies' interpretation of 
these rules and statutes. 
(B) Notwithstanding subparagraph (A) of this paragraph, hazardous wastes 
generated at natural gas or natural gas liquids processing plants or reservoir 
pressure maintenance or repressurizing plants are subject to the jurisdiction of 
the TNRCC until the RRC is authorized by EPA to administer RCRA. When the RRC is 
authorized by EPA to administer RCRA, jurisdiction over such hazardous wastes 
will transfer from the TNRCC to the RRC. 
(c) Definition of hazardous waste. 
(1) Under the Texas Health and Safety Code, sec.361.003(12), a "hazardous waste" 
subject to the jurisdiction of the TNRCC is defined as "solid waste identified 
or listed as a hazardous waste by the administrator of the United States 
Environmental Protection Agency under the federal Solid Waste Disposal Act, as 
amended by the Resource Conservation and Recovery Act of 1976, as amended (42 
U.S.C. sec.6901, et seq.)." Similarly, under Texas Natural Resources Code, 
sec.91.601(1), "oil and gas hazardous waste" subject to the jurisdiction of the 
RRC is defined as an "oil and gas waste that is a hazardous waste as defined by 
the administrator of the United States Environmental Protection Agency under the 
federal Solid Waste Disposal Act, as amended by the Resource Conservation and 
Recovery Act of 1976 (42 U.S.C. sec.6901, et seq.)." 
(2) Federal regulations adopted under authority of the federal Solid Waste 
Disposal Act, as amended by RCRA, exempt from regulation as hazardous waste 
certain oil and gas wastes. Under 40 Code of Federal Regulations (CFR) 
sec.261.4(b)(5), "drilling fluids, produced waters, and other wastes associated 
with the exploration, development, or production of crude oil, natural gas or 
geothermal energy" are described as wastes that are exempt from federal 
hazardous waste regulations. 
(3) A partial list of wastes associated with oil, gas, and geothermal 
exploration, development, and production that are considered exempt from 
hazardous waste regulation under RCRA can be found in EPA's "Regulatory 
Determination for Oil and Gas and Geothermal Exploration, Development and 
Production Wastes," 53 FedReg 25,446 (July 6, 1988). A further explanation of 
the exemption can be found in the "Clarification of the Regulatory Determination 
for Wastes from the Exploration, Development and Production of Crude Oil, 
Natural Gas and Geothermal Energy, " 58 FedReg 15,284 (March 22, 1993). The 
exemption codified at 40 CFR sec.261.4(b)(5) and discussed in the Regulatory 
Determination has been, and may continue to be, clarified in subsequent guidance 
issued by the EPA. 
(d) Jurisdiction over specific disposal activities. 
(1) Discharges under Texas Water Code, Chapter 26. Under the Texas Water Code, 
Chapter 26, the TNRCC has jurisdiction over discharges of waste into or adjacent 
to water in the state, other than discharges regulated by the RRC. The RRC 
regulates discharges of waste from activities associated with the exploration, 
development, or production of oil, gas, or geothermal resources, including 
transportation of crude oil and natural gas by pipeline, and from solution brine 
mining activities (except solution mining activities conducted for the purpose 
of creating caverns in naturally-occurring salt formations for the storage of 
wastes regulated by the TNRCC) under Texas Natural Resources Code, Title 3, and 
Texas Water Code, Chapter 26. Discharges of waste regulated by the RRC into 
water in the state shall not cause a violation of the water quality standards. 
While water quality standards are established by the TNRCC, the RRC has the 
responsibility for enforcing any violations of such standards. Texas Water Code, 
Chapter 26, does not require that discharges regulated by the RRC comply with 
regulations of the TNRCC that are not water quality standards. Because of the 
complexity of 30 Texas Administrative Code sec.307.6 (concerning toxic 
materials), the staffs of the TNRCC and the RRC will consult from time to time 
regarding application and interpretation of the Texas Surface Water Quality 
Standards. 
(2) Disposal wells under Texas Water Code, Chapter 27. Jurisdiction over wastes 
disposed by injection is divided between the RRC and the TNRCC as set forth in 
Texas Water Code, Chapter 27 (the Injection Well Act). The RRC has jurisdiction 
under Texas Water Code, Chapter 27, over injection wells used to dispose of oil 
and gas waste. Texas Water Code, Chapter 27, defines "oil and gas waste" to mean 
"waste arising out of or incidental to drilling for or producing of oil, gas, or 
geothermal resources, waste arising out of or incidental to the underground 
storage of hydrocarbons other than storage in artificial tanks or containers, or 
waste arising out of or incidental to the operation of gasoline plants, natural 
gas processing plants, or pressure maintenance or repressurizing plants. The 
term includes but is not limited to salt water, brine, sludge, drilling mud, and 
other liquid or semi-liquid waste material." The term "waste arising out of or 
incidental to drilling for or producing of oil, gas, or geothermal resources" 
includes waste associated with transportation of crude oil or natural gas by 
pipeline pursuant to Texas Natural Resources Code, sec.91.101. The TNRCC has 
jurisdiction over injection wells used to dispose of other types of waste. 
(3) Disposal of naturally occurring radioactive material (NORM). (The term 
"disposal" does not include receipt, possession, use, processing, transfer, 
transport, storage, or commercial distribution of radioactive materials, 
including NORM. These activities are under the jurisdiction of the Texas 
Department of Health per Texas Health and Safety Code, sec.401.011(a)). 
(A) Under Texas Health and Safety Code, sec.401.415, the RRC has jurisdiction 
over the disposal of NORM that constitutes, is contained in, or has contaminated 
oil and gas waste. This waste material is called "oil and gas NORM waste." Oil 
and gas NORM waste may be generated in connection with the exploration, 
development, or production of oil or gas. Oil and gas NORM waste may also be 
generated in connection with geothermal resource exploration, development, or 
production activities or solution brine mining activities.
(B) Under Texas Health and Safety Code, sec.401.412, the TNRCC has jurisdiction 
over the disposal of NORM which is not oil and gas NORM waste. 
(e) Jurisdiction over waste from specific oil and gas activities.
(1) Drilling, operation, and plugging of wells associated with the exploration, 
development, or production of oil, gas, or geothermal resources. Wells 
associated with the exploration, development, or production of oil, gas, or 
geothermal resources include exploratory wells, cathodic protection holes, core 
holes, oil wells, gas wells, geothermal resource wells, fluid injection wells 
used for secondary or enhanced recovery of oil or gas, oil and gas waste 
disposal wells, and injection water source wells. Several types of waste 
materials can be generated during the drilling, operation, and plugging of these 
wells. These waste materials include drilling fluids (including water-based and 
oil- based fluids), cuttings, produced water, produced sand, waste hydrocarbons 
(including used oil), fracturing fluids, spent acid, workover fluids, treating 
chemicals (including scale inhibitors, emulsion breakers, paraffin inhibitors, 
and surfactants), waste cement, filters (including used oil filters), domestic 
sewage (including waterborne human waste and waste from activities such as 
bathing and food preparation), and trash (including inert waste, barrels, dope 
cans, oily rags, mud sacks, and garbage). Generally, these wastes, whether 
disposed of by discharge, landfill, land farm, evaporation, or injection, are 
subject to the jurisdiction of the RRC. 
(2) Field treatment of produced fluids. Oil, gas, and water produced from oil, 
gas, or geothermal resource wells may be treated in the field in facilities such 
as separators, skimmers, heater treaters, dehydrators, and sweetening units. 
Waste materials that result from the field treatment of oil and gas include 
waste hydrocarbons (including used oil), produced water, hydrogen sulfide 
scavengers, dehydration wastes, treating and cleaning chemicals, filters 
(including used oil filters), asbestos insulation, domestic sewage, and trash 
are subject to the jurisdiction of the RRC. 
(3) Storage of oil. 
(A) Tank bottoms, storm water runoff, and other wastes from the storage of crude 
oil (whether foreign or domestic) before it enters the refinery are under the 
jurisdiction of the RRC. In addition, waste resulting from storage of crude oil 
at refineries is subject to the jurisdiction of the TNRCC. Further, stormwater 
runoff from terminal facilities where both refined products intended for use 
offsite and crude oil are stored in aboveground tanks is under the jurisdiction 
of the TNRCC. Stormwater runoff from a terminal facility where crude oil is 
stored prior to refining and at which refined products are stored solely for use 
at the facility is under the jurisdiction of the RRC. 
(B) Wastes generated from storage tanks which are part of the refinery and 
wastes resulting from the wholesale and retail marketing of refined products are 
subject to the jurisdiction of the TNRCC. 
(4) Underground hydrocarbon storage. The disposal of wastes, including 
saltwater, resulting from the construction, creation, operation, maintenance, 
closure, or abandonment of an "underground hydrocarbon storage facility" is 
subject to the jurisdiction of the RRC, provided the terms "hydrocarbons" and 
"underground hydrocarbon storage facility" have the meanings set out in Texas 
Natural Resources Code, sec.91.201. 
(5) Underground natural gas storage. The disposal of wastes resulting from the 
construction, operation, or abandonment of an "underground natural gas storage 
facility" is subject to the jurisdiction of the RRC, provided that the terms 
"natural gas" and "storage facility" have the meanings set out in Texas Natural 
Resources Code, sec.91.173. 
(6) Transportation of crude oil or natural gas. 
(A) Crude oil and natural gas are transported by railcars, tank trucks, barges, 
tankers, and pipelines. The RRC has jurisdiction over waste from the 
transportation of crude oil by pipeline, regardless of the crude oil source 
(foreign or domestic) prior to arrival at a refinery. The RRC also has 
jurisdiction over waste from the transportation by pipeline of natural gas, 
including natural gas liquids, prior to the use of the natural gas in any 
manufacturing process or as a residential or industrial fuel. The transportation 
wastes subject to the jurisdiction of the RRC include wastes from pipeline 
compressor or pressure stations and wastes from pipeline hydrostatic pressure 
tests and other pipeline operations. These wastes include waste hydrocarbons 
(including used oil), treating and cleaning chemicals, filters (including used 
oil filters), scraper trap sludge, trash, domestic sewage, wastes contaminated 
with polychlorinated biphenyls (PCBs) (including transformers, capacitors, 
ballasts, and soils), soils contaminated with mercury from leaking mercury 
meters, asbestos insulation, transite pipe, and hydrostatic test waters. 
(B) The TNRCC has jurisdiction over waste from transportation of refined 
products by pipeline. 
(C) The TNRCC also has jurisdiction over wastes associated with transportation 
of crude oil and natural gas, including natural gas liquids, by railcar, tank 
truck, barge, or tanker. 
(7) Reclamation plants. 
(A) The RRC has jurisdiction over wastes from reclamation plants that process 
wastes from activities associated with the exploration, development, or 
production of oil, gas, or geothermal resources, such as lease tank bottoms. 
Waste management activities of reclamation plants for other wastes are subject 
to the jurisdiction of the TNRCC. 
(B) In addition to waste management jurisdiction, the RRC has jurisdiction over 
the conservation and prevention of waste of crude oil and therefore must approve 
all movements of crude oil-containing materials to reclamation plants. The 
applicable statute and regulations consist primarily of reporting requirements 
for accounting purposes.
(8) Refining of oil. 
(A) The management of wastes resulting from oil refining operations, including 
spent caustics, spent catalysts, still bottoms or tars, and API separator 
sludges, is subject to the jurisdiction of the TNRCC. The processing of light 
ends from the distillation and cracking of crude oil or crude oil products is 
considered to be a refining operation. The term "refining" does not include the 
processing of natural gas or natural gas liquids. 
(B) The RRC has jurisdiction over refining activities for the conservation and 
the prevention of waste of crude oil. The RRC requires that all crude oil 
streams into or out of a refinery be reported for accounting purposes. In 
addition, the RRC requires that materials recycled and used as a fuel, such as 
still bottoms or waste crude oil, be reported. 
(9) Natural gas or natural gas liquids processing plants (including gas 
fractionation facilities) and pressure maintenance or repressurizing plants. 
Wastes resulting from activities associated with these facilities include 
produced water, cooling tower water, sulfur bead, sulfides, spent caustics, 
sweetening agents, spent catalyst, waste hydrocarbons (including used oil), 
asbestos insulation, wastes contaminated with PCBs (including transformers, 
capacitors, ballasts, and soils), treating and cleaning chemicals, filters, 
trash, domestic sewage, and dehydration materials. These wastes are subject to 
the jurisdiction of the RRC under Texas Natural Resources Code, sec.91.101. 
Disposal of waste from activities associated with natural gas or natural gas 
liquids processing plants (including gas fractionation facilities), and pressure 
maintenance or repressurizing plants by injection is subject to the jurisdiction 
of the RRC under Texas Water Code, Chapter 27. Notwithstanding any contrary 
provision of this paragraph, until delegation of authority under RCRA to the 
RRC, the TNRCC shall have jurisdiction over wastes resulting from these 
activities that are not exempt from federal hazardous waste regulation under 
RCRA and that are considered hazardous under applicable federal rules.
(10) Manufacturing processes. 
(A) Wastes that result from the use of natural gas, natural gas liquids, or 
products refined from crude oil in any manufacturing process, such as the 
production of petrochemicals or plastics, or from the manufacture of carbon 
black, are industrial wastes subject to the jurisdiction of the TNRCC. The term 
"manufacturing process" does not include the processing (including 
fractionation) of natural gas or natural gas liquids at natural gas or natural 
gas liquids processing plants. 
(B) The RRC has jurisdiction under Texas Natural Resources Code, Chapter 87, to 
regulate the use of natural gas in the production of carbon black. 
(11) Commercial service company facilities and training facilities. 
(A) The TNRCC has jurisdiction over wastes generated at facilities, other than 
actual exploration, development, or production sites (field sites), where oil 
and gas industry workers are trained. In addition, the TNRCC has jurisdiction 
over wastes generated at facilities where materials, processes, and equipment 
associated with oil and gas industry operations are researched, developed, 
designed, and manufactured. However, wastes generated from tests of materials, 
processes, and equipment at field sites are under the jurisdiction of the RRC. 
(B) The TNRCC also has jurisdiction over waste generated at commercial service 
company facilities operated by persons providing equipment, materials, or 
services (such as drilling and work over rig rental and tank rental; equipment 
repair; drilling fluid supply; and acidizing, fracturing, and cementing 
services) to the oil and gas industry. These wastes include the following wastes 
when they are generated at commercial service company facilities: empty sacks, 
containers, and drums; drum, tank, and truck rinsate; sandblast media; painting 
wastes; spent solvents; spilled chemicals; waste motor oil; and unused 
fracturing and acidizing fluids. 
(C) The term "commercial service company facility" does not include a station 
facility such as a warehouse, pipeyard, or equipment storage facility belonging 
to an oil and gas operator and used solely for the support of that operator's 
own activities associated with the exploration, development, or production or 
oil or gas or geothermal resources, including the transportation of crude oil or 
natural gas by pipeline. 
(D) Notwithstanding subparagraphs (A)-(C) of this paragraph, the RRC has 
jurisdiction over disposal of oil and gas wastes, such as waste drilling fluids 
and NORM-contaminated pipe scale, that are managed at commercial service company 
facilities. 
(E) The RRC also has jurisdiction over wastes such as vacuum truck rinsate and 
tank rinsate generated at facilities operated by oil and gas waste haulers 
permitted by the RRC pursuant to sec.3.8(f) of this title (relating to water 
protection). 
(12) Spill response. Contaminated soil and other wastes that result from a spill 
must be managed in accordance with the governing statutes and regulations 
adopted by the agency responsible for the activity that resulted in the spill. 
Coordination of issues of spill notification, prevention, and response shall be 
addressed in the State of Texas Oil and Hazardous Substance Spill Contingency 
Plan and may be addressed further in a separate Memorandum of Understanding 
among these agencies and other appropriate state agencies. 
(f) Interagency activities. 
(1) Recycling and pollution prevention. 
(A) The TNRCC and the RRC encourage generators to eliminate pollution at the 
source and recycle whenever possible to avoid disposal of solid wastes. 
Questions regarding source reduction and recycling may be directed to the TNRCC 
Office of Pollution Prevention & Recycling (OPPR)/Clean Texas 2000, telephone 
number (800) 64-TEXAS, or to the Waste Minimization Program at the RRC. The 
TNRCC reserves the right to require generators to explore source reduction and 
recycling alternatives prior to authorizing disposal of any waste under the 
jurisdiction of the RRC at a facility regulated by the TNRCC; similarly, the RRC 
reserves the right to require generators to explore source reduction and 
recycling alternatives prior to authorizing disposal of any waste under the 
jurisdiction of the TNRCC at a facility regulated by the RRC. 
(B) The TNRCC OPPR and the RRC Waste Minimization Program will meet at least two 
times each year to maintain a working relationship to enhance the efforts to 
share information and use resources more efficiently. The TNRCC OPPR will make 
the proper TNRCC personnel aware of the services offered by the RRC Waste 
Minimization Program, share information with the RRC Waste Minimization Program 
to maximize services to oil and gas operators, and advise oil and gas operators 
of RRC Waste Minimization Program services. The RRC Waste Minimization Program 
will make the proper RRC personnel aware of the services offered by the TNRCC 
OPPR, share information with the TNRCC OPPR to maximize services to industrial 
operators, and advise industrial operators of the TNRCC OPPR services. 
(2) Treatment of wastes under RRC jurisdiction at facilities registered by 
TNRCC's Petroleum Storage Tank Division. 
(A) Soils contaminated with constituents that are physically and chemically 
similar to those normally found in soils at leaking underground petroleum 
storage tanks from generators under the jurisdiction of the RRC are eligible for 
treatment at TNRCC regulated soil treatment facilities once alternatives for 
recycling and source reduction have been explored. For the purpose of this 
provision, soils containing petroleum substance(s) as defined in 30 Texas 
Administrative Code sec.334.481 (concerning definitions) are considered to be 
similar, but drilling muds, acids, or other chemicals used in oil and gas 
activities are not considered similar. Generators under the jurisdiction of the 
RRC must meet the same requirements as generators under the jurisdiction of the 
TNRCC when sending their petroleum contaminated soils to soil treatment 
facilities under TNRCC jurisdiction. Those requirements are in 30 Texas 
Administrative Code sec.334.496 (concerning shipping procedures applicable to 
generators of petroleum-substance waste), except subsection (c) which is not 
applicable, and 30 Texas Administrative Code sec.334.497 (concerning 
recordkeeping and reporting procedures applicable to generators). RRC generators 
with questions on these requirements should call the TNRCC Petroleum Storage 
Tank (PST) Division, Responsible Party Investigations Section, telephone number 
(512) 239-2200. 
(B) Generators under RRC jurisdiction should also be aware that TNRCC regulated 
soil treatment facilities are required by 30 Texas Administrative Code 
sec.334.499 (concerning shipping requirements applicable to owners or operators 
of storage, treatment, or disposal facilities) to maintain documentation on the 
soil sampling and analytical methods, chain-of-custody, and all analytical 
results for the soil received at the facility and transported off-site or reused 
on-site. 
(C) The RRC must specifically authorize management of contaminated soils under 
its jurisdiction at facilities registered by the PST Division of the TNRCC. The 
RRC may grant such authorizations by rule, or on an individual basis through 
permits or other written authorizations. 
(D) All waste materials, including those that have been treated, that are 
subject to the jurisdiction of the RRC and are managed at facilities registered 
by the PST Division of the TNRCC will remain subject to the jurisdiction of the 
RRC. Such materials will be subject to RRC regulations regarding final reuse, 
recycling, or disposal. 
(E) TNRCC waste codes and registration numbers are not required for management 
of wastes under the jurisdiction of the RRC at facilities registered by the PST 
Division of the TNRCC. 
(3) Disposal of wastes under RRC jurisdiction at facilities permitted by the 
TNRCC. 
(A) As provided in this paragraph, waste materials subject to the jurisdiction 
of the RRC may be managed at solid waste facilities under the jurisdiction of 
the TNRCC once alternatives for recycling and source reduction have been 
explored. The RRC must specifically authorize management of wastes under its 
jurisdiction at facilities regulated by the TNRCC. The RRC may grant such 
authorizations by rule, or on an individual basis through permits or other 
written authorizations. In addition, except as provided in subparagraph (B) of 
this paragraph, the concurrence of the TNRCC is required to manage waste under 
the jurisdiction of the RRC at a facility regulated by the TNRCC. The TNRCC's 
concurrence may be subject to specified conditions. 
(B) A facility under the jurisdiction of the TNRCC may accept, without further 
individual concurrence, waste under the jurisdiction of the RRC if that facility 
is permitted or otherwise authorized to accept that particular type of waste. 
The phrase "that type of waste" does not specifically refer to waste under the 
jurisdiction of the RRC, but rather to the waste's physical and chemical 
characteristics. 
(C) In all other instances, individual written concurrences from the TNRCC shall 
be required to manage wastes under the jurisdiction of the RRC at TNRCC 
regulated facilities. (This is required only if the TNRCC regulated facility 
receiving the waste does not have approval to accept the waste included in its 
permit or other authorization provided by the TNRCC.) To obtain an individual 
concurrence, the waste generator must provide to the TNRCC sufficient 
information to allow the concurrence determination to be made, including the 
identity of the proposed waste management facility, the process generating the 
waste, the quantity of waste, and the physical and chemical nature of the waste 
involved (using process knowledge and/or laboratory analysis as defined in 30 
Texas Administrative Code, Chapter 335, Subchapter R (concerning waste 
classification)). In obtaining TNRCC approval, generators may use their existing 
knowledge about the process or materials entering it to characterize their 
wastes. Material Safety Data Sheets, manufacturer's literature, and other 
documentation generated in conjunction with a particular process may be used. 
Process knowledge must be documented and submitted with the request for 
approval. 
(D) Notwithstanding subparagraphs (A)-(C) of this paragraph, waste sludge 
subject to the jurisdiction of the RRC, other than domestic septage that is not 
mixed with other waste materials, may not be applied to the land at a facility 
permitted by the TNRCC for the beneficial use of sewage sludge or water 
treatment sludge. Domestic septage collected from portable toilets at facilities 
subject to RRC jurisdiction that is not mixed with other waste materials may be 
managed at a facility permitted by the TNRCC for disposal, incineration, or land 
application for beneficial use of such domestic septage waste without specific 
authorization from the TNRCC. 
(E) Additional guidance regarding requirements for, and restrictions on, 
management of particular types of wastes regulated by the RRC at facilities 
registered or permitted by the TNRCC may be issued in the future. 
(F) TNRCC waste codes and registration numbers are not required for management 
of wastes under the jurisdiction of the RRC at facilities under the jurisdiction 
of the TNRCC. If a receiving facility nevertheless requests or requires a TNRCC 
waste code for waste under the jurisdiction of the RRC, a code consisting of the 
following may be provided: 
(i) the sequence number "RRCT"; 
(ii) the appropriate form code, as specified in 30 Texas Administrative Code 
Chapter 335, Subchapter R, Appendix 3 (concerning form codes); and 
(iii) the waste classification code "H" if the waste is a hazardous oil and gas 
waste, or "R" if the waste is a nonhazardous oil and gas waste. 
(G) If a facility requests or requires a TNRCC waste generator registration 
number for wastes under the jurisdiction of the RRC, the registration number 
"XXXRC" may be provided. 
(H) Wastes that are under the jurisdiction of the RRC need not be reported to 
the TNRCC's Industrial and Hazardous Waste Division. 
(4) Management of nonhazardous wastes under TNRCC jurisdiction at facilities 
regulated by the RRC. 
(A) Once alternatives for recycling and source reduction have been explored, and 
with prior authorization from the RRC, the following nonhazardous wastes subject 
to the jurisdiction of the TNRCC may be disposed of, other than by injection 
into a Class II well, at a facility regulated by the RRC; bioremediated at a 
facility regulated by the RRC (prior to reuse, recycling, or disposal); or 
reclaimed at a crude oil reclamation facility regulated by the RRC: nonhazardous 
wastes that are chemically and physically similar to oil and gas wastes, but 
excluding soils, media, debris, sorbent pads, and other clean-up materials that 
are contaminated with refined petroleum products.
(B) To obtain an individual authorization from the RRC, the waste generator must 
provide the following information, in writing, to the RRC: the identity of the 
proposed waste management facility, the quantity of waste involved, a hazardous 
waste determination that addresses the process generating the waste and the 
physical and chemical nature of the waste, and any other information that the 
RRC may require. As appropriate, the RRC shall reevaluate any authorization 
issued pursuant to this paragraph. 
(C) Once alternatives for recycling and source reduction have been explored, and 
subject to the RRC's individual authorization, the following wastes under the 
jurisdiction of the TNRCC are authorized without further TNRCC approval to be 
disposed of at a facility regulated by the RRC, bioremediated at a facility 
regulated by the RRC, or reclaimed at a crude oil reclamation facility regulated 
by the RRC: nonhazardous bottoms from tanks used only for crude oil storage; 
unused and/or reconditioned drilling and completion/workover wastes from 
commercial service company facilities; used and/or unused drilling and 
completion/workover wastes generated at facilities where workers in the oil and 
gas exploration, development, and production industry are trained; used and/or 
unused drilling and completion/workover wastes generated at facilities where 
materials, processes, and equipment associated with oil and gas exploration, 
development, and production operations are researched, developed, designed, and 
manufactured; unless other provisions are made in the underground injection well 
permit used and/or unused drilling and completion wastes (but not workover 
wastes) generated in connection with the drilling and completion of Class I, 
III, and V injection wells; wastes (such as contaminated soils, media, debris, 
sorbent pads, and other cleanup materials) associated with spills of crude oil 
and natural gas liquids if such wastes are under the jurisdiction of the TNRCC; 
and sludges from washout pits at commercial service company facilities. 
(D) In a public health, public safety, or environmental emergency, the RRC and 
the TNRCC may consider allowing injection of wastes under the jurisdiction of 
the TNRCC into Class II injection wells permitted by the RRC.
(E) Pursuant to Texas Water Code, sec.27.0511(g), TNRCC concurrence is required 
for injection of TNRCC-regulated waste in connection with a secondary or 
tertiary recovery project. 
(F) Additional guidance regarding requirements for, and restrictions on, 
management of particular types of wastes covered under this MOU may be issued in 
the future. 
(5) Drilling in landfills. The TNRCC will notify the Environmental Services 
Section of the Oil and Gas Division of the RRC and the landfill owner at the 
time a drilling application is submitted if an operator proposes to drill a well 
through a landfill regulated by the TNRCC. The RRC and the TNRCC will cooperate 
and coordinate with one another in advising the appropriate parties of measures 
necessary to reduce the potential for the landfill contents to cause groundwater 
contamination as a result of landfill disturbance associated with drilling 
operations. 
(6) Coordination of enforcement actions and cooperative sharing of enforcement 
information. 
(A) In the event that a generator or transporter disposes, without proper 
authorization, of wastes regulated by the TNRCC at a facility permitted by the 
RRC, the TNRCC is responsible for enforcement actions against the generator or 
transporter, and the RRC is responsible for enforcement actions against the 
disposal facility. In the event that a generator or transporter disposes, 
without proper authorization, of wastes regulated by the RRC at a facility 
permitted by the TNRCC, the RRC is responsible for enforcement actions against 
the generator or transporter, and the TNRCC is responsible for enforcement 
actions against the disposal facility. 
(B) The TNRCC and the RRC agree to cooperate with one another by sharing 
enforcement information. Employees of either agency who discover, in the course 
of their official duties, information that indicates a violation of a statute, 
regulation, order, or permit pertaining to wastes under the jurisdiction of the 
other agency, are encouraged to notify the other agency. In addition, to 
facilitate enforcement actions, each agency is encouraged to share information 
in its possession with the other agency if requested by the other agency to do 
so. 
(g) Definitions. Words shall have meaning as defined in the rules of each 
agency. Words not so defined shall have their regular meaning as used as a term 
of art in industry practice. 
(h) Disputes. The staff of the RRC and the TNRCC shall meet as necessary to 
attempt to resolve any disputes regarding interpretation of this MOU and 
disputes regarding definitions and terms of art. If a staff-level meeting fails 
to resolve the dispute, the dispute will be elevated to the senior management of 
both agencies for resolution. 
(i) Effective date. This Memorandum of Understanding, as of its effective date, 
shall supersede the prior Memorandum of Understanding among the agencies, dated 
December 1, 1987. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 11, 1998.
TRD-9807661
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: May 31, 1998
Proposal publication date: December 26, 1997
For further information, please call: (512) 463-7008

PART III. Texas Alcoholic Beverage Commission
CHAPTER 31. Administration
Administrative Functions of the Commission
16 TAC sec.31.5
The Texas Alcoholic Beverage Commission adopts an amendment to sec.31.5, 
governing the schedule of charges to be imposed for providing copies of public 
information. The amendments are adopted without changes to the proposed text as 
published in the February 27, 1998, issue of the Texas Register (23 TexReg 
1778). 
The amendments are adopted to bring the commission's practice into conformity 
with the guidelines of the Texas General Services Commission and the 
requirements of Texas Government Code, sec.552.262 and 1 TAC sec.sec.111.63-
111.70.
No public comment was received regarding these amendments.
This amendment is adopted pursuant to the authority granted by sec.5.31 of the 
Alcoholic Beverage Code. 
Cross reference: sec.5.31, Alcoholic Beverage Code. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 4, 1998.
TRD-9807255
Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
Effective date: May 24, 1998
Proposal publication date: February 27, 1998
For further information, please call: (512) 206-3204

TITLE 22. EXAMINING BOARDS
PART XXIII. Texas Real Estate Commission
CHAPTER 535.Provisions of the Real Estate License Act
SUBCHAPTER G.Mandatory Continuing Education
22 TAC sec.535.71
The Texas Real Estate Commission (TREC) adopts an amendment to sec.535.71, 
concerning approval of mandatory continuing education (MCE) providers, courses 
and instructors, without changes to the proposed text as published in the March 
13, 1998. issue of the Texas Register (23 TexReg 2693).
The amendment replaces the term "salesman" with "salesperson" to comply with 
House Bill 814, 75th Legislature (1997), which requires TREC to use the term 
"salesperson" in all its rules and documents no later than January 1, 1999. 
No comments were received regarding the proposed amendment. 
The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which authorize the Texas Real Estate Commission to make and enforce all rules 
and regulations necessary for the performance of its duties.
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 7, 1998.
TRD-9807438
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: May 27, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 465-3900

SUBCHAPTER H. Recovery Fund
22 TAC sec.535.81 
The Texas Real Estate Commission (TREC) adopts an amendment to sec.535.81, 
concerning fees paid by real estate licensees for the real estate recovery fund, 
without changes to the proposed text as published in the March 13, 1998, issue 
of the Texas Register (23 TexReg 2694).
The amendment replaces the term "salesman" with "salesperson" to comply with 
House Bill 814, 75th Legislature (1997), which requires TREC to use the term 
"salesperson" in all its rules and documents no later than January 1, 1999. The 
amendment also replaces the gender specific term "he" with "a person" for 
consistency. 
No comments were received regarding the proposed amendment. 
The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which authorize the Texas Real Estate Commission to make and enforce all rules 
and regulations necessary for the performance of its duties. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 7, 1998.
TRD-9807439
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: May 27, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 465-3900

SUBCHAPTER I.Licenses
22 TAC sec.sec.535.92, 535.93, 535.95
(Editor's note: In the proposed version sec.535.92 as published March 13, 1998 
(23 TexReg 2694), subsections (a)-(d) were incorrectly shown as "(No Change)" 
due to an error by the Texas Register. However, the amended text for subsection 
(d) was also published correctly. It is adopted here without change to the 
proposal as filed by the agency. The text is being published for clarification.)
The Texas Real Estate Commission (TREC) adopts amendments to sec.sec.535.92, 
535.93 and 535.95, concerning license renewals for real estate licensees, 
without changes to the proposed text as published in the March 13, 1998, issue 
of the Texas Register (23 TexReg 2694).
The amendments replace the term "salesman" with "salesperson" to comply with 
House Bill 814, 75th Legislature (1997), which requires TREC to use the term 
"salesperson" in all its rules and documents no later than January 1, 1999. The 
amendments also replace the gender specific term "his" with terms which are not 
gender specific for consistency. No comments were received regarding the 
proposed amendments. 
The amendments are adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which authorize the Texas Real Estate Commission to make and enforce all rules 
and regulations necessary for the performance of its duties. 

sec.535.92.Renewal: Time for Filing; Satisfaction of Mandatory Continuing 
Education Requirements.
(a)-(c) (No change.) 
(d) An inactive broker or inactive salesperson may renew a license by complying 
with the renewal procedures established by the commission. An inactive licensee 
shall furnish a residence address at the time the licensee becomes inactive and 
report all subsequent address changes. 
(e) (No change.) 
(f) Each licensee shall, as a condition of maintaining a license, pay the 
renewal fee no later than the day the current license expires. A licensee who 
fails timely to pay a renewal fee must apply for and receive a new active 
license in order to act as a real estate broker or salesperson. If the 
application is filed within one year after the expiration of an existing 
license, the commission may issue the new license prior to completing the 
investigation of any complaint pending against the applicant or of any matter 
revealed by the application without waiving the right to initiate an action to 
suspend or revoke the license after notice and hearing in accordance with the 
Act, sec.17. 
(g) The commission shall advise each licensee of the time period for filing a 
renewal application and paying the renewal fee by mailing an appropriate notice 
to the licensee's last known business address, or if the licensee is an inactive 
salesperson, to the licensee's last known residence address. The notice shall be 
mailed at least three months before expiration of the current license. If the 
licensee is subject to mandatory continuing education (MCE) requirements, the 
notice must also contain the number of MCE hours for which the licensee has been 
given credit and the number of additional MCE hours required for renewal of the 
license. The commission shall have no obligation to so notify an inactive 
salesperson who has failed to furnish the commission with the salesperson's 
residence address or a corporation, limited liability company or partnership 
that has failed to designate an officer, manager or partner who meets the 
requirements of the Real Estate License Act (the Act). The commission may not 
renew a license issued to a corporation, limited liability company or 
partnership unless the corporation, limited liability company or partnership has 
designated an officer, manager or partner who meets the requirements of the Act, 
including satisfaction of MCE requirements. No person may act as designated 
officer, manager or partner if the person has failed to meet MCE requirements. 
For the purpose of this section, MCE requirements for the designated officer, 
manager or partner must be satisfied during the term of any individual broker 
license held by the officer, manager or partner. A designated partner who is not 
licensed individually as a broker on September 1, 1991, shall be considered to 
have been licensed as a broker on that date and must complete MCE required for a 
two-year license expiring on August 31, 1993, and for every two years thereafter 
in order to renew the license of the partnership. The commission shall assign a 
number to an unlicensed designated partner to use in lieu of an individual 
license number when completing MCE forms required by the commission. If the 
individual real estate broker license of a designated partner expires, the 
partnership may only renew its license if the designated partner has satisfied 
MCE requirements that would have been imposed if the license of the designated 
partner had not expired. 
(h)-(k) (No change.) 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 7, 1998.
TRD-9807437
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: May 27, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 465-3900

SUBCHAPTER J.Fees
22 TAC sec.535.101
The Texas Real Estate Commission (TREC) adopts an amendment to sec.535.101, 
concerning fees paid by real estate licensees and applicants, without changes to 
the proposed text as published in the March 13, 1998, issue of the Texas 
Register (23 TexReg 2695). 
The amendment replaces the term "salesman" with "salesperson" to comply with 
House Bill 814, 75th Legislature (1997), which requires TREC to use the term 
"salesperson" in all its rules and documents no later than January 1, 1999.
No comments were received regarding the proposed amendment. 
The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which authorize the Texas Real Estate Commission to make and enforce all rules 
and regulations necessary for the performance of its duties. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 7, 1998.
TRD-9807436
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: May 27, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 465-3900

SUBCHAPTER K.Place of Business 
22 TAC sec.sec.535.111-535.113 
The Texas Real Estate Commission (TREC) adopts amendments to sec.sec.535.111-
535.113, concerning a real estate broker's place of business. The amendments to 
sec.sec.535.111 and 535.113 are adopted without changes to the proposed text as 
published in the March 13, 1998, issue of the Texas Register (23 TexReg 2696).
The amendment to sec.535.112 is adopted with one change; an additional term 
"salesmen" was replaced by "salespersons."
The amendments are necessary for TREC to comply with House Bill 814, 75th 
Legislature (1997), which requires TREC to use the term "salesperson" in all its 
rules and documents no later than January 1, 1999. The amendments also replace 
the gender specific term "his" with terms which are not gender specific for 
consistency.
No comments were received regarding the proposed amendments. 
The amendments are adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which authorize the Texas Real Estate Commission to make and enforce all rules 
and regulations necessary for the performance of its duties. 

sec.535.112.Branch Office.
(a) A branch office license is required when the public would reasonably 
construe that the broker has an office at a location other than the location of 
the broker's main office address. 
(b) A branch office license must be applied for and obtained if a broker 
maintains more than one place of business. Even though an office is used only by 
salespersons, it remains the broker's office as the broker is responsible for 
all business activities conducted from it. 
(c) (No change.) 
(d) A licensed broker may have as many offices and use as many assumed business 
names as the broker desires, provided branch office licenses are obtained and 
the assumed names are filed with the commission.
(e) (No change.)
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 7, 1998.
TRD-9807431
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: May 27, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 465-3900

SUBCHAPTER L.Termination of Salesperson's Association with Sponsoring Broker 
22 TAC sec.sec.535.121-535.123 
The Texas Real Estate Commission (TREC) adopts amendments to sec.535.121, 
concerning inactive salesperson license, sec.535.122, concerning reactivation of 
salesperson's license, and sec.535.123, concerning inactive broker license, 
without changes to the proposed text as published in the March 13, 1998, issue 
of the Texas Register (23 TexReg 2696).
The amendments replace the term "salesman" with "salesperson" to comply with 
House Bill 814, 75th Legislature (1997), which requires TREC to use the term 
"salesperson" in all its rules and documents no later than January 1, 1999.
No comments were received regarding the proposals. 
The amendments are adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which authorize the Texas Real Estate Commission to make and enforce all rules 
and regulations necessary for the performance of its duties. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 7, 1998.
TRD-9807435
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: May 27, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 465-3900

SUBCHAPTER M.Nonresidents 
22 TAC sec.535.131, sec.535.133
The Texas Real Estate Commission (TREC) adopts amendments to sec.535.131, 
concerning the splitting of fees by real estate licensees with nonresidents, and 
sec.535.133, concerning the consent to service filed by a nonresident licensee, 
without changes to the proposed text as published in the March 13, 1998, issue 
of the Texas Register (23 TexReg 2697). 
The amendments replace the term "salesman" with "salesperson" to comply with 
House Bill 814, 75th Legislature (1997), which requires TREC to use the term 
"salesperson" in all its rules and documents no later than January 1, 1999. For 
consistency, the amendment to sec.535.131 also replaces the gender specific term 
"he" with a term which is not gender specific. 
No comments were received regarding the proposed amendments. 
The amendments are adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which authorize the Texas Real Estate Commission to make and enforce all rules 
and regulations necessary for the performance of its duties. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 7, 1998.
TRD-9807434
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: May 27, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 465-3900

SUBCHAPTER N.Suspension and Revocation of Licensure 
22 TAC sec.sec.535.141, 535.143, 535.144, 535.146, 535.150, 535.154-535.160
The Texas Real Estate Commission (TREC) adopts amendments to sec.535.141, 
concerning initiation of investigations, sec.535.143, concerning fraudulent 
procurement of a license, sec.535.144, concerning a licensee acting as a 
principal, sec.535.146, concerning failure properly to account for or remit 
money, sec.535.150, concerning acting in a dual capacity, sec.535.154, 
concerning misleading advertising, sec.535.155, concerning association with an 
unlicensed person, sec.535.156, concerning dishonesty, bad faith or 
untrustworthiness, sec.535.157, concerning negligence or incompetence, 
sec.535.158, concerning violations of The Real Estate License Act, sec.535.159, 
concerning failure properly to deposit escrow monies and sec.535.160, concerning 
failure properly to dispurse escrow monies, without changes to the proposed text 
as published in the March 13, 1998, issue of the Texas Register (23 TexReg 
2698). 
The amendments replace the term "salesman" with "salesperson" to comply with 
House Bill 814, 75th Legislature (1997), which requires TREC to use the term 
"salesperson" in all its rules and documents no later than January 1, 1999. The 
amendments also replace gender specific terms such as "his" with terms which are 
not gender specific for consistency or revise the sections so as not to use 
terms limited to a single gender.
No comments were received regarding the proposed amendments.
The amendments are adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which authorize the Texas Real Estate Commission to make and enforce all rules 
and regulations necessary for the performance of its duties. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 7, 1998.
TRD-9807433
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: May 27, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 465-3900

SUBCHAPTER S. Residential Rental Locators
22 TAC sec.535.300 
The Texas Real Estate Commission (TREC) adopts an amendment to sec.535.300, 
concerning advertising guidelines for residential rental locators, without 
changes to the proposed text as published in the March 13, 1998, issue of the 
Texas Register (23 TexReg 2700). 
The amendment replaces the term "salesman" with "salesperson" to comply with 
House Bill 814, 75th Legislature (1997), which requires TREC to use the term 
"salesperson" in all its rules and documents no later than January 1, 1999. 
No comments were received regarding the proposed amendment. 
The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), 
which authorize the Texas Real Estate Commission to make and enforce all rules 
and regulations necessary for the performance of its duties. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 7, 1998.
TRD-9807432
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Effective date: May 27, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 465-3900

TITLE 30. ENVIRONMENTAL QUALITY
PART I. Texas Natural Resource Conservation Commission
CHAPTER 7. Memoranda of Understanding
30 TAC sec.7.117
The Texas Natural Resource Conservation Commission (TNRCC) adopts new sec.7.117, 
concerning a Memorandum of Understanding (MOU) between the TNRCC and the 
Railroad Commission of Texas (RRC). Section 7.117 is adopted with changes to the 
proposed text as published in the December 26, 1997 issue of the Texas Register 
(22 TexReg 12674). 
EXPLANATION OF ADOPTED RULES. The adopted MOU update redefines and clarifies 
jurisdiction between the TNRCC and the RRC with regard to oil, gas, and related 
wastes. The oil, gas, and related waste MOU was last updated in December 1987. 
Since that time, several statutory changes in jurisdiction and agency 
reorganizations have taken place that required the MOU to be updated. The MOU 
was also updated to resolve several past operational interface concerns between 
the agencies in regulating oil and gas wastes. 
Section 335.28(3) is concurrently being deleted by amendment because the updated 
MOU is now adopted by reference in 30 TAC Chapter 7. The full text of the MOU is 
adopted within RRC rule 16 Texas Administrative Code sec.3.30. Section sec.7.117 
has been further amended to state where to go within the commission to obtain a 
copy of the MOU adopted by reference if it cannot be obtained from the internet. 
FINAL REGULATORY IMPACT ANALYSIS. The commission has reviewed the 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 it does not meet the definition of a "major environmental 
rule" as defined in the act, and it does not meet any of the four applicability 
requirements listed in sec.2001.0225(a). 
The rulemaking is not a major environmental rule because it does not contain any 
requirements on the regulated community; it merely contains understandings 
between state agencies on their joint jurisdiction and on areas of cooperation.
TAKINGS IMPACT ASSESSMENT. The commission has prepared a takings impact 
assessment for these rules under Texas Government Code, sec.2007.043. The 
following is a summary of that assessment. The specific purpose of the rules is 
to propose for adoption by reference an update to the Memorandum of 
Understanding (MOU) between the TNRCC and the RRC with regard to oil, gas, and 
related wastes, and delete the old version of the MOU in sec.335.28(3). The new 
sec.7.117 substantially advances the stated purpose by adopting by reference the 
updated MOU redefining and clarifying the jurisdiction between the TNRCC and the 
RRC with regard to oil, gas, and related wastes. The rule has no effect on 
private real property because it does not incorporate any substantive provisions 
impacting private real property. 
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW. The commission has reviewed the 
adopted rulemaking and found that the rule is neither identified in Coastal 
Coordination Act Implementation Rules, 31 TAC sec.505.11, relating to Actions 
and Rules Subject to the Coastal Management Program (CMP), nor will it affect 
any action/authorization identified in Coastal Coordination Act Implementation 
Rules, 31 TAC sec.505.11. Therefore, the adopted rule is not subject to the CMP. 
HEARING AND COMMENTERS. A public hearing was not held for this rulemaking. The 
comment period closed January 30, 1998. No comments were received on sec.7.117.
The RRC did receive three comment letters on the full text of the MOU that was 
proposed to be adopted in their rules. The commenters were: Enron Gas Pipeline 
Group, the Texas Oil and Gas Association, and TU Services. These comments were 
jointly evaluated by the agencies and the responses to them are discussed in the 
RRC adoption preamble for 16 TAC sec.3.30.
STATUTORY AUTHORITY. The amendment is adopted under the Texas Water Code, 
sec.5.104, and Texas Health and Safety Code, sec.361.016 and sec.401.069, which 
require the TNRCC to adopt by rule any MOU or a revision to an MOU. The 
amendment is also adopted under the Texas Water Code, sec.sec.5.103, 5.105, 
26.011, and 27.019, 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; and the Texas Solid Waste Disposal Act, Texas Health 
and Safety Code, sec.sec.361.011, 361.015, 361.017, 361.024, and 401.412, which 
provide the commission with authority to regulate industrial solid wastes, 
municipal hazardous and nonhazardous wastes, and disposal of radioactive 
substances, and to adopt and promulgate rules consistent with the general intent 
and purposes of the Act. The amendment is also adopted under the Texas Natural 
Resources Code, sec.91.101 and sec.91.602, which provide the RRC with the 
authority to adopt rules regulating nonhazardous and hazardous oil and gas 
wastes. 

sec.7.117. Memorandum of Understanding between the Railroad Commission of Texas 
and the Texas Natural Resource Conservation Commission. 
The Memorandum of Understanding between the Railroad Commission of Texas and the 
Texas Natural Resource Conservation Commission, concerning cooperation and the 
division of jurisdiction between the agencies regarding wastes that result from, 
or are related to, activities associated with the exploration, development, and 
production of oil, gas, or geothermal resources, and the refining of oil, is 
adopted by reference as adopted in Texas Railroad Commission rule 16 TAC 
sec.3.30 (concerning Memorandum of Understanding between the Railroad Commission 
of Texas and the Texas Natural Resource Conservation Commission). If a copy of 
this document cannot be obtained from the internet, a copy can be requested from 
the Texas Natural Resource Conservation Commission, Chief Clerk's Office, P.O. 
Box 13087, Austin, Texas 78711-3087, (512) 239-3300.
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 11, 1998.
TRD-9807656
Kevin McCalla
Director Legal Division
Texas Natural Resource Conservation Commission
Effective date: May 31, 1998
Proposal publication date: December 26, 1997
For further information, please call: (512) 239-6087

CHAPTER 335. Industrial Solid Waste and Municipal Hazardous Waste
SUBCHAPTER A. Industrial Solid Waste and Municipal Hazardous Waste in General
30 TAC sec.335.28
The Texas Natural Resource Conservation Commission (TNRCC) adopts an amendment 
to sec.335.28, concerning Adoption of Memoranda of Understanding (MOU) by 
Reference. Section 335.28 is adopted with changes to the proposed text as 
published in the December 26, 1997 issue, of the Texas Register (22 TexReg 
12682).
EXPLANATION OF ADOPTED RULES. Section 335.28(3) is deleted by amendment, as the 
updated MOU is concurrently being adopted by reference in 30 TAC Chapter 7. The 
full text of the updated MOU is adopted within RRC rule 16 Texas Administrative 
Code sec.3.30. 
The adopted MOU update redefines and clarifies jurisdiction between the TNRCC 
and the Railroad Commission of Texas (RRC) with regard to oil, gas, and related 
wastes. The oil, gas, and related waste MOU was last updated in December 1987. 
Since that time, several statutory changes in jurisdiction and agency 
reorganizations have taken place that required the MOU to be updated. The MOU 
was also updated to resolve several past operational interface concerns between 
the agencies in regulating oil and gas wastes. 
Section 335.28 has been further amended to update where to obtain a copy of 
remaining MOUs adopted by reference within that section. 
FINAL REGULATORY IMPACT ANALYSIS. The commission has reviewed the 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 it does not meet the definition of a "major environmental 
rule" as defined in the act, and it does not meet any of the four applicability 
requirements listed in sec.2001.0225(a). 
The rulemaking is not a major environmental rule because it does not contain any 
requirements on the regulated community; it merely contains understandings 
between state agencies on their joint jurisdiction and on areas of cooperation.
TAKINGS IMPACT ASSESSMENT. The commission has prepared a takings impact 
assessment for these rules under Texas Government Code, sec.2007.043. The 
following is a summary of that assessment. The specific purpose of the rules is 
to propose for adoption by reference an update to the MOU between the TNRCC and 
the RRC with regard to oil, gas, and related wastes, and delete the old version 
of the MOU in sec.335.28(3). The amended sec.335.28 substantially advances the 
stated purpose by deleting the old version of the MOU. The rule has no effect on 
private real property because it does not incorporate any substantive provisions 
impacting private real property. 
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW. The commission has reviewed the 
adopted rulemaking and found that the rule is neither identified in Coastal 
Coordination Act Implementation Rules, 31 TAC sec.505.11, relating to Actions 
and Rules Subject to the Coastal Management Program (CMP), nor will it affect 
any action/authorization identified in Coastal Coordination Act Implementation 
Rules, 31 TAC sec.505.11. Therefore, the adopted rule is not subject to the CMP. 
HEARING AND COMMENTERS. A public hearing was not held for this rulemaking. The 
comment period closed January 30, 1998. No comments were received on sec.335.28. 
The RRC did receive three comment letters on the full text of the MOU that was 
proposed to be adopted in their rules. The commenters were: Enron Gas Pipeline 
Group, the Texas Oil and Gas Association, and TU Services. These comments were 
jointly evaluated by the agencies and the responses to them are discussed in the 
RRC adoption preamble for 16 TAC sec.3.30.
STATUTORY AUTHORITY. The amendment is adopted under the Texas Water Code, 
sec.5.104, and Texas Health and Safety Code, sec.361.016 and sec.401.069, which 
require the TNRCC to adopt by rule any MOU or a revision to an MOU. The 
amendment is also adopted under the Texas Water Code, sec.sec.5.103, 5.105, 
26.011, and 27.019, 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; and the Texas Solid Waste Disposal Act, Texas Health 
and Safety Code, sec.sec.361.011, 361.015, 361.017, 361.024, and 401.412, which 
provide the commission with authority to regulate industrial solid wastes, 
municipal hazardous and nonhazardous wastes, and disposal of radioactive 
substances, and to adopt and promulgate rules consistent with the general intent 
and purposes of the Act. The amendment is adopted under the Texas Natural 
Resources Code, sec.91.101 and sec.91.602, which provide the RRC with the 
authority to adopt rules regulating nonhazardous and hazardous oil and gas 
wastes. 

sec.335.28. Adoption of Memoranda of Understanding by Reference.
The following memoranda of understanding between the commission and other state 
agencies, required to be adopted by rule as set forth in the Texas Water Code, 
sec.5.104, are adopted by reference. Copies of these documents are available 
upon request from the Texas Natural Resource Conservation Commission, Chief 
Clerk's Office, P.O. Box 13087, Austin, Texas 78711-3087, (512) 239-3300.
(1)-(2) (No change.) 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 11, 1998.
TRD-9807655
Kevin McCalla
Director Legal Division
Texas Natural Resource Conservation Commission
Effective date: May 31, 1998
Proposal publication date: December 26, 1997
For further information, please call: (512) 239-6087

TITLE 31. NATURAL RESOURCES AND CONSERVATION
PART II. Texas Parks and Wildlife Department
CHAPTER 55. Law Enforcement
SUBCHAPTER L. Marine Safety Enforcement - Training and Certification Standards
31 TAC sec.sec.55.801-55.807
The Texas Parks and Wildlife Commission adopts new sec.sec.55.801-55.807, 
concerning training and certification of marine safety enforcement officers, 
without changes to the proposed text as published in the March 13, 1998, issue 
of the Texas Register (23 TexReg 2726). 
The new sections are necessary in order to implement the provisions of House 
Bill 966, enacted by the 75th Texas Legislature, which established marine safety 
officer training in this state. 
The new sections will function by establishing the certification criteria for 
persons to become marine safety officers and marine safety officer course 
instructors. 
The department received six comments concerning adoption of the proposed rules. 
Two commenters opposed the proposed requirement that a Marine Safety Enforcement 
Instructor be a Marine Safety Enforcement Officer, because the requirement would 
prevent persons employed by police academies, but who are not licensed as peace 
officers, from obtaining instructor certification. The department disagrees with 
the comments and responds that active-duty peace officers would provide the most 
proficient and uniform instruction on enforcement of the Texas Water Safety Act, 
all personnel certified as Marine Safety Enforcement Officers must be active 
duty peace officers. No changes were made as a result of the comments. Four 
comments in favor of adoption of the proposed rules were received. 
The new sections are adopted under Parks and Wildlife Code, sec.31.121, which 
gives the commission authority to adopt rules establishing standards for 
training and certifying marine safety enforcement officers, creating exemptions 
from training and certification requirements, and establishing fees to recover 
administrative costs associated with the certification process. 
Filed with the Office of the Secretary of State on May 8, 1998.
TRD-9807545
Bill Harvey 
Regulatory Coordinator
Texas Parks and Wildlife Department
Effective date: May 28, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 389-4775

TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART I. Texas Department of Human Services
CHAPTER 15.Medicaid Eligibility
The Texas Department of Human Services (DHS) adopts amendments to 
sec.sec.15.435, 15.460, and 15.475, concerning liquid resources, income 
exemptions, and deeming of income, in its Medicaid eligibility chapter. 
The justification for the amendments is to comply with Public Law 104-204. These 
amendments mandate the exclusion from income and resources of the Department of 
Veterans Affairs payments made to or on behalf of certain Vietnam veterans' 
natural children regardless of their age or marital status, for any disability 
resulting from spina bifida. 
The amendments will function by ensuring that DHS is in compliance with federal 
law. 

SUBCHAPTER D.Resources
40 TAC sec.15.435
The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 
and 32, which authorizes the department to administer public and medical 
assistance programs and under Texas Government Code sec.531.021, which provides 
the Health and Human Services Commission with the authority to administer 
federal medical assistance funds. The amendment is adopted in compliance with 
federal requirements effective October 1, 1997. 
The amendment implements sec.sec.22.001-22.030 and 32.001-32.042 of the Human 
Resources Code. 

sec.15.435. Liquid Resources. 
(a)-(r) (No change.) 
(s) Effective October 1, 1997, Public Law 104-204 excludes from resources 
Department of Veterans Affairs payments made to or on behalf of certain Vietnam 
veterans' natural children regardless of their age or marital status, for any 
disability resulting from spina bifida suffered by such children. Interest 
earned on unspent payments is not excluded. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 7, 1998.
TRD-9807458
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: October 1, 1997
For further information, please call: (512) 438-3765

SUBCHAPTER E.Income
40 TAC sec.sec.15.460, 15.475
The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 
and 32, which authorizes the department to administer public and medical 
assistance programs and under Texas Government Code sec.531.021, which provides 
the Health and Human Services Commission with the authority to administer 
federal medical assistance funds. The amendment is adopted in compliance with 
federal requirements effective October 1, 1997. 
The amendments implement sec.sec.22.001-22.030 and 32.001-32.042 of the Human 
Resources Code. 

sec.15.460. Income Exemptions. 
(a) (No change.) 
(b) The Texas Department of Human Services exempts income that a client receives 
from any of the following sources: 
(1) - (36) (No change.) 
(37) payments from the Department of Veterans Affairs made to or on behalf of 
certain Vietnam veterans' natural children regardless of their age or marital 
status, for any disability resulting from spina bifida suffered by such children 
as required by Public Law 104-204, effective October 1, 1997. Interest earned on 
unspent payments is not excluded. 

sec.15.475.Deeming of Income. 
(a) The following requirements apply: 
(1) - (3) (No change.) 
(4) The Texas Department of Human Services (DHS) exempts certain types of income 
that may be received by a client's ineligible spouse, ineligible parent, a 
parent's ineligible spouse, or any ineligible children living in the household. 
The following types of income are not deemed to the client: 
(A)- (FF) (No change.)
(GG) payments made in the class settlement of the Susan Walker vs. Bayer 
Corporation lawsuit, as required by Public Law 105-33, effective August 5, 1997. 
(HH) payments from the Department of Veterans Affairs made to or on behalf of 
certain Vietnam veterans' natural children regardless of their age or marital 
status, for any disability resulting from spina bifida suffered by such 
children, as required by Public Law 104-204, effective October 1, 1997. Interest 
earned on unspent payments is not excluded. 
(b) - (d) (No change.) 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 7, 1998.
TRD-9807459
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: October 1, 1997
For further information, please call: (512) 438-3765

CHAPTER 18.Nursing Facility Administrators
The Texas Department of Human Services (DHS) adopts the repeal of sec.18.1 and 
sec.sec.18.11-18.14, and new sec.18.1 and sec.sec.18.11-18.14 with changes to 
the proposed text published in the January 23, 1998, issue of the Texas Register 
(23 TexReg 530). 
Justification for the repeals and new sections is that the health and safety of 
nursing facility residents will be better protected by ensuring the timely and 
efficient management of complaints and ensuring appropriate sanctions are 
initiated against an administrator for a finding of substandard quality of care 
and deficiency citations that are related to an act or failure to act by the 
administrator. 
The new sections will function by complying with Senate Bill 84, which was 
passed during the 75th Regular Session of the Texas Legislature and which 
transferred all functions, obligations, rights, con- tracts, records, and rules 
of the Texas Board of Nursing Facility Administrators to DHS, effective 
September 1, 1997. These rule changes alter the complaint procedures by allowing 
a complainant to be heard, and establish information that should be provided to 
the complainant and a time frame for the resolution of a complaint. The grounds 
for sanctioning an administrator have been expanded to include whether a 
deficiency is related to an act or failure to act by the administrator, and a 
procedure has been established for the referral of an administrator for a 
finding of substandard quality of care during an investigation or survey. The 
department received the following comments from the Texas Association of 
Licensed Facility Administrators (TALFA), Texas Association of Residential Care 
Communities (TARCC), Texas Health Care Association (THCA), and one licensed 
nursing facility administrator during the comment period: 
Comment: sec.18.11(a) refers to complaints investigated by the department's 
Credentialing Department. This should be limited to written complaints. This 
would make the complaint more viable.
Response: The proposed rules, as indicated in sec.18.11(c), require the above. A 
form must be completed and returned to the department. 
Comment: Regarding sec.18.11(c), we understand the department must honor 
confidentiality regarding the complaint. However, the nature of the complaint 
should be revealed to the licensee in writing, prior to the investigation, on a 
form developed by the department. Add the following language at the end of the 
paragraph: "The licensee will be informed in writing on a form developed by the 
department, of the nature of the complaint, prior to the beginning of the 
investigation." All of the information at sec.18.11(g) should also be provided 
to the licensee for whom an investigation takes place. This would be in 
compliance with sec.242.312(b) and (f) of the statute that refers to all parties 
being notified. The proposed provision does not afford an administrator with 
notice of a complaint. This seems blatantly unfair. Administrator's are entitled 
to know that a complaint has been filed against them. 
Response: The department partly concurs with the comments and has made a change 
in the proposed language at sec.18.11(f) which now states: "An investigation of 
the licensee and complaint allegation shall be conducted by DHS investigative 
staff to determine compliance with this rule. The investigation shall include 
contact with the complainant and licensee, who shall each be afforded an 
opportunity to provide a written response to the complaint allegation." The 
proposed language at sec.18.11(g) is being revised to state: "After a complaint 
is filed against a licensee, the Credentialing Department shall provide the 
following information to the complainant and licensee: the assigned case number, 
the projected time requirements for pursing the complaint, any change in the 
schedule for pursuing the complaint, and DHS's final disposition of the 
complaint at the conclusion of the investigation." 
Comment: sec.18.11 (f)-(j) refers to making facility books, records, etc. 
accessible to DHS upon request. A DHS investigator should show their 
identification specifying that he/she is an employee of DHS. The licensee should 
be notified in cases where DHS is utilizing the services of a private 
investigator, otherwise the administrator might not be forthcoming with certain 
information and could be looked upon as impeding the investigation. If the 
department sends out an "under- cover" private investigator, the facility would 
have no obligation to making records accessible due to confidentiality laws.
Response: The department does not concur and recommends adoption of the language 
as proposed. If books and records are requested from the administrator, DHS 
identification will be provided. 
Comment: The wording at sec.18.11(j) states "the licensee must make all facility 
books, records, and other pertinent documents maintained by or on behalf of a 
facility" is too vague. Instead, we recommend that the information that can be 
obtained be limited to only records that pertain to the investigation. We 
recommend that the information accessed be limited to only records that pertain 
to the investigation. 
Response: The department does not concur and recommends adoption of the language 
as proposed. The department retains the right to request any and all information 
it deems necessary in investigating a complaint against an administrator. 
Comment: Regarding sec.18.11(g), the proposed language should be amended to 
state: "Upon receipt of a complaint, whether referral- instigated or otherwise, 
the Credentialing Department will notify the licensee that they may submit a 
written response to the complaint that, if received before the Advisory 
Committee's review date, will be considered by the Advisory Committee at the 
same time as the complaint." 
Response: The department does not concur with the comments. The statute 
mandates, at sec.242.303(d), that the committee review all complaints against 
administrators and make recommendations to the department regarding disciplinary 
actions. The administrator is still afforded all opportunities to due process in 
accordance with sec.2001.056 of the Government Code. The proposed language at 
sec.18.11(f) is being changed to state: "An investigation of the licensee and 
complaint allegation shall be conducted by DHS investigative staff to determine 
compliance with this rule. The investigation shall include contact with the 
complainant and licensee, who shall each be afforded an opportunity to provide a 
written response to the complaint allegation."
Comment: Regarding sec.18.11(j)(1), photocopying, photographing, and recording 
should be limited to only information that pertains to the investigation.
Response: The department concurs and has made the suggested change at 
sec.18.11(j)(1).
Comment: Regarding sec.18.11(j)(1), appropriate evidence should also be supplied 
to the licensed nursing home administrator which would include photographs of 
residents and audio tapes of recordings made to preserve evidence. Under present 
procedure with DHS, if the facility records any conversations with DHS 
employees, then a copy has to be given to DHS immediately. If a copy is not 
supplied to the facility or licensee, then any evidence DHS wishes to present 
from the recording should not be allowed. Add the following language at the end 
of the paragraph: "The licensee will be supplied copies of photographs of 
residents and any audio records of evidence." 
Response: The department does not concur and recommends adoption of the language 
as proposed. Current department procedure is to collect information and evidence 
that pertains to a complaint investigation. Any evidence collected during the 
course of an investigation may be available to the administrator or his 
representative through discovery, if sanctions are imposed against a licensee. 
Comment: Regarding sec.18.11(j)(2), incident/accident reports are tools used by 
the facility Quality Assurance Committee to aide the committee in directing 
proper care for residents. These documents should remain protected under any 
condition. 
Response: The department does not concur and recommends adoption of the language 
as proposed. Facility incident/accident reports are not protected documents. 
Comment: Regarding sec.18.11(l), the licensee should be provided with all 
complaint information collected by the Department, with the exception of the 
names of individuals, and notations regarding invalid complaints should be noted 
in the files. Delete the word "and" at the end of number (3) and add the 
following language: "(5) invalid complaints will be noted in the information 
file; and (6) the licensee will be supplied with all documentation in the 
information file, except names of individuals." 
Response: The department does not concur and recommends adoption of the language 
as proposed. The content of (5) above is addressed in the proposed language at 
sec.18.11(l)(3). The department does not agree with (6) above. Current 
department procedure is to provide notification of unsubstantiated complaints to 
a licensee and complainant. 
Comment: Regarding sec.18.11(o), at the completion of the investigation, the 
facility, company, or licensee should receive copies of all relevant facts and 
findings obtained during the investigation. 
Response: The department does not concur and recommends adoption of the language 
as proposed. Current department procedure is to provide notification of the 
final disposition of a complaint to the licensee and complainant, at the 
conclusion of the department's investigation. Any evidence collected during the 
course of an investigation may be available through discovery, if sanctions are 
imposed against a licensee. 
Comment: Regarding sec.18.11(p), a copy of the notice of dismissal should also 
be placed in the complaint information file. Add the following language at the 
end of the paragraph: "and a copy placed in the complaint information file." 
Response: The department does not concur and recommends adoption of the language 
as proposed. These comments are addressed at sec.18.11(l)(3). 
Comment: Regarding sec.18.11(p), if it is determined there is insufficient 
evidence to support the complaint, then all information should be removed from 
the licensee file. As it stands at the present time, complaint information 
remains in the licensee file even if the complaint is invalid. Therefore, DHS 
can sight how many complaints have been filed in future situations, and not take 
in consideration that the past complaints were found invalid. 
Response: The department does not concur and recommends adoption of the language 
as proposed. The statute, at sec.242.312(e)(3), requires that the board be 
advised at least quarterly of complaints that have been dismissed. Therefore, 
records of all complaints and dispositions of complaints are maintained by the 
department. 
Comment: Regarding sec.18.11(r), criteria needs to be developed by the 
department on what actions will be proposed under different conditions before 
these rules are adopted. The criteria will lend consistency to the application 
of the actions. 
Response: The department does not concur and recommends adoption of the language 
as proposed. Any disciplinary action initiated by the department is based on a 
combination of unique factors, including the seriousness of the violation and 
harm or potential harm created to the health and safety of facility residents; 
the economic harm to property or environment caused by the violation; the 
efforts of the licensee to correct the violation; and the licensee's history of 
previous violations. Therefore, it is necessary to evaluate each case on its own 
merit. 
Comment: The rules do not address what adverse actions will result from 
violations resulting from a complaint investigation. Does the Schedule of 
Sanctions under sec.18.13(a) apply to violations resulting from complaint 
investigations? 
Response: The department agrees with the comments and has therefore made a 
change in the proposed language at sec.18.11(o) to reflect which adverse actions 
can result from violations identified during a complaint investigation. Yes, the 
sanctions listed at sec.18.13(a) do apply to violations identified during a 
complaint investigation. 
Comment: Regarding sec.18.12(a)(1)-(4), (b), (c), and (d), this whole
section should be removed. "There are many occasions in the nursing facility
industry, where a company, which employs the licensee, restricts the licensee
from taking action in what may be considered a timely manner. DHS should make
a finding as to the extent of authority given the licensee, by ownership,
to influence the delivery of care rendered by the facility. In addition, DHS
is very inconsistent in their survey process and perception of quality of
care given to residents. The current survey process allows for surveyor opinion
of care and does not always grade on the actual care given. Furthermore, DHS
surveyors normally have never worked in long term care and do not truly 
understand
what training a licensee has or the process of providing resident care in
a facility. There are too many occasions where the resident's care and condition
is not considered, but instead a surveyor will focus only on documentation.
Section 18.12(a) will allow DHS to punish a licensee for many things which
are beyond their control. This section appears to suggest that instead of
correcting problems in the industry, DHS wants to unjustly punish or remove
a licensee because that is simply the easiest route." 

Response: The department does not concur with the comments but has made changes 
to the proposed language. Section 18.12(a)(1)-(4) has been deleted because this 
portion of the proposed rules addresses issues which are encompassed in the 
Standards of Conduct for nursing facility administrators. However, the 
department will retain the language as proposed at sec.18.12(b),(c) and (d) 
which will now become sec.18.12(a),(b) and (c) respectively. 
Comment: Regarding sec.18.12(b), is this section of the rules written to comply 
with Section 242.313(e) of the statute? The rules only state that the 
Credentialing Department will receive and evaluate referrals from Long Term 
Care-Regulatory when survey findings indicate substandard quality of care. 
Section 242.313(e) of the statute states: "The department shall by rule 
establish criteria to determine whether deficiencies from a facility's survey 
warrant action against an administrator. The criteria shall include a 
determination of whether the survey indicates substandard quality of care 
related to an act or failure to act by the administrator, and whether a 
deficiency is related to an act or failure to act by the administrator. If a 
deficiency on which a disciplinary action against an administrator is initiated 
or completed is not substantiated, the disciplinary action shall be reversed." 
Response: Section 18.12(b) is not written to comply with sec.242.313(e) of the 
statute. sec.18.13(b)(8) and (9) complies with the requirements of 
sec.242.313(e) of the statute. The proposed language at sec.18.13(b)(8) is being 
revised to state: "a survey indicates substandard quality of care that is 
related to an act or failure to act by the licensee, which is based on the 
Standards of Conduct as specified in sec.18.19 of this title" and 
sec.18.13(b)(9) is being revised to state: "the deficiencies cited during a 
survey are related to an act or failure to act by the licensee which is based on 
the Standards of Conduct as specified in sec.18.19 of this title."
Comment: Regarding sec.18.12, these provisions fail to provide timely notice to 
an administrator that a referral-instigated complaint has been lodged against 
him. In fact, no notice is provided to the administrator until after the staff 
has reviewed the matter and made its recommendations to the Advisory Committee. 
If he has no notice of the complaint or its contents, he is obviously unable to 
defend himself. The language should be amended to read: "Upon receipt of such a 
referral, the Credentialing Department will issue notice to the licensee which 
will include the date of the survey, the deficiencies cited by the surveyor; the 
date the Advisory Committee will review the referral-instigated complaint; and 
the ability of the licensee to submit a letter responding to the cited 
deficiencies as provided by sec.18.11(2). Written notice should be provided to 
an administrator of a complaint against him before the matter is ever considered 
by the Advisory Committee. 
Response: The department does not concur and recommends adoption of the language 
as proposed. sec.18.12 pertains to referral of an administrator to the state 
licensing authority for a finding of substandard quality of care, as mandated by 
42 Code of Federal Regulations. 
Comment: Regarding sec.18.13(b)(7),(8), and (9), these sanctions should not be 
set forth by DHS or DHS surveyors. Once again, quality of care issues usually 
fall to surveyor opinion and are not accurate assessments of care given to 
residents. 
Response: The department does not concur with the comments. Section 18.13(b)(7), 
(8), and (9) refer to the grounds on which DHS can initiate sanctions and are 
mandated by the statue at Section 242.313. 
Comment: Delete the language at sec.18.13(b)(9)(D); not a reasonable measure of 
performance. 
Response: The department concurs; sec.18.13(b)(9)(A)-(D) has been deleted. The 
proposed language at sec.18.13(b)(8) is being revised to state: "a survey 
indicates substandard quality of care that is related to an act or failure to 
act by the licensee, which is based on the Standards of Conduct as specified in 
sec.18.19 of this title" and sec.18.13(b)(9) is being revised to state: "the 
deficiencies cited during a survey are related to an act or failure to act by 
the licensee which is based on the Standards of Conduct as specified in 
sec.18.19 of this title." 
Comment: Regarding sec.18.13(a)(7), what does "placement of a nursing facility 
administrator's license on probation" mean? 
Response: The department is changing the proposed language at sec.18.13(a)(7) to 
state "placement of a licensee on probation" which is required by the statute at 
sec.242.313(a). When a licensee is placed on probation, the department allows 
the licensee to retain the license and defers the imposition of other sanctions 
until the specific conditions of the probation are met. 
Is there any relationship between sec.18.13(a)(7) and sec.18.13(d)?
Response: Section 18.13(a)(7) refers to the actual "sanction" imposed against 
the licensee--placement on probation. Section 18.13(d) is mandated by the 
statute at sec.242.313(b)(1)-(3) and refers to the deferment of other sanctions 
until conditions of the probation are met. 
Comment: Regarding sec.18.13(d)(1)-(3), does this satisfy the probation?
Response: In order to "satisfy" the terms of a probation, a licensee has to meet 
the specific conditions that are required within established time frames. 
Comment: Regarding sec.18.13(d)(2), what does "limit practice to only specific 
areas" indicate? 
Response: The limit of practice to specific areas means that although the 
department allows a licensee to retain his license, there may be stipulations 
placed on the licensee's ability to practice, such as requiring oversight by a 
licensed administrator or a certified preceptor. 
Comment: Regarding sec.18.13(g)(2)-(8), we would like clarification that this 
section applies to suspension of a license for failure to pay child support 
only. 
Response: Section 18.13(g)(1)-(9) applies only to suspension of a license for 
failure to pay child support. 
Comment: Regarding sec.18.14(c), we question why the department wants the 
ability to assess an administrative penalty against the individual at the 
conclusion of the investigation when the licensee has already permanently 
surrendered his/her license. The criminal system will address situations where 
there are gross violations. If an administrator has surrendered their license, 
he/she will no longer be employed as the administrator and it may be difficult 
to pay a hefty administrative penalty. What happens if the administrator cannot 
pay the penalty? 
Response: The department does not concur and recommends adoption of the language 
as proposed. There have been occasions when an administrator voluntarily 
surrenders a license in order to avoid paying an administrative penalty, having 
a license suspended or revoked. Simply because a license is voluntarily 
surrendered, that doesn't negate the fact that when licensed and practicing as a 
nursing facility administrator, the individual violated Health and Safety Code, 
Chapter 242, Subchapter I or the department's rules adopted under this 
subchapter. As mandated by the statute at Section 242.316(i), if the person does 
not pay the amount of the penalty and the enforcement of the penalty is not 
stayed, the department may refer the matter to the attorney general for 
collection of the amount of the penalty. 
Comment: Where are the monetary penalties described or quantified? Is this in 
other sections of rules that have not been published yet? 
Response: The department has developed proposed rules to address the assessment 
of administrative penalties as a sanction, as required by the statue at 
sec.242.316. The proposed rules were published as in the February 27, 1998 issue 
of the Texas Register for 30-day comment period. 
In sec.18.1(21) and (24) typos were corrected. In addition, the department 
changed the telephone number that appears in sec.18.11(b). Throughout the rules 
DHS changed "will" and "may" to "shall." 

40 TAC sec.sec.18.1, 18.11-18.14
The repeals are adopted under the Texas Health and Safety Code, Chapter 242, 
Subchapter I, which authorizes the department to license nursing facility 
administrators. 
The repeals implement the Texas Health and Safety Code, Chapter 242.301-242.322.
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 8, 1998.
TRD-9807501
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: June 1, 1998
Proposal publication date: January 23, 1998
For further information, please call: (512) 438-3765

40 TAC sec.sec.18.1, 18.11-18.14
The new sections are adopted under the Texas Health and Safety Code, Chapter 
242, Subchapter I, which authorizes the department to license nursing facility 
administrators. 
The new sections implement the Texas Health and Safety Code, Chapter 242.301-
242.322.

sec.18.1.Introduction. 
(a) Purpose. The purpose of this chapter is to implement the provisions of Texas 
Health and Safety Code, Chapter 242, Subchapter I. 
(b) Definitions. The following words and terms, when used in this chapter, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) Abbreviated standard survey - A survey other than a standard survey that 
gathers information primarily through resident-centered techniques on facility 
compliance with the requirements for participation. An abbreviated survey may be 
premised on complaints, a change in ownership, management, director of nursing, 
or other indicators of specific concern. 
(2) Abuse - Any act, failure to act, or incitement to act done will- fully, 
knowingly, or recklessly through words or physical action which causes or could 
cause mental or physical injury or harm or death to a resident. This includes 
verbal, sexual, mental/psychological, or physical abuse, including corporal 
punishment, involuntary seclusion, or any other actions within this definition. 
(3) Administrative Law Judge - An attorney duly designated and appointed who 
conducts hearings under this chapter on behalf of the department.
(4) Administrator - See definition for "nursing facility administrator." 
(5) Administrator-in-training (AIT) - An applicant who is currently undergoing 
an internship under the auspices of a department-approved, certified preceptor 
or through a department-approved college practicum. 
(6) Applicant - A person who applies for licensure under the Texas Health and 
Safety Code, Chapter 242, Subchapter I. 
(7) APA - The Administrative Procedure Act, Chapter 2001 of the Texas Government 
Code. 
(8) Committee - The nine-member Nursing Facility Administrators Advisory 
Committee. 
(9) Complaint - An allegation that a licensed nursing facility administrator has 
violated one or more provisions of the Texas Health and Safety Code, Chapter 
242, Subchapter I, or rules adopted under that chapter.
(10) Completed application - The official nursing facility administrator 
application forms, fees and all supporting documentation which meet the criteria 
set out in sec.18.3 of this title (relating to Application Procedures). 
(11) Contested case - A proceeding in accordance with the APA and this chapter, 
including but not limited to rule enforcement and licensing, in which the legal 
rights, duties, or privileges of a party are to be determined by the 
Administrative Law Judge after an opportunity for an adjudicative hearing. 
(12) Deficiency - A skilled nursing facility or nursing facility's failure to 
meet a participation requirement as specified in the Social Security Act. 
(13) Department - The Texas Department of Human Services (DHS). 
(14) Equivalency - A level of achievement equivalent to completion of an 
educational or training program equal in force, amount, or value. 
(15) Formal hearing - A hearing or proceeding conducted under the provisions of 
the APA. 
(16) Internship - The training period for an Administrator-In-Training gaining 
supervised practical experience. 
(17) License - A nursing facility administrator license or a provisional nursing 
facility administrator license. 
(18) Licensee - A person who is licensed under the Texas Health and Safety Code, 
Chapter 242, Subchapter I. 
(19) Misappropriation of resident property - The taking, secretion, 
misapplication, deprivation, transfer, or attempted transfer to any person not 
entitled to receive any property, real or personal, or anything of value 
belonging to or under the legal control of a resident without the effective 
consent of the resident or other appropriate legal authority, or taking of any 
action contrary to any duty imposed by federal or state law prescribing conduct 
relating to the custody or disposition of property of a resident. 
(20) NAB - National Association of Boards of Examiners for Nursing Home 
Administrators, Inc. 
(21) Neglect - A deprivation of life's necessities of food, water, or shelter, 
or a failure of an individual to provide services, treatment, or care to a 
resident which causes or could cause mental or physical injury, or harm or death 
to the resident. 
(22) Nursing facility - An institution or facility that is licensed as a nursing 
facility by the department under the Texas Health and Safety Code, Chapter 242. 
(23) Nursing facility administrator or administrator - A person who engages in 
the practice of nursing facility administration without regard to whether the 
person has an ownership interest in the facility or whether the functions and 
duties are shared with any other person. 
(24) Party - Each person, governmental agency, or officer or employee of a 
governmental agency named by the Administrative Law Judge as having a 
justifiable interest in the matter being considered, or any person, governmental 
agency, or officer or employee of a governmental agency meeting the requirements 
of a party prescribed by applicable law. 
(25) Person - An individual, corporation, partnership, or other legal entity. 
(26) Practice of nursing facility administration - The performance of the acts 
of administering, managing, supervising, or being in general administrative 
charge of a nursing facility. 
(27) Practicum - A course of study designed for the preparation of nursing 
facility administrators that involves supervision by the college of the 
practical application of previously studied theory in a nursing facility 
setting. 
(28) Preceptor - A licensed nursing facility administrator who meets the 
criteria in sec.18.6 of this title (relating to Administrators-in-Training).
(29) Referral - A finding of substandard quality of care in a nursing facility 
that requires Long Term Care-Regulatory to report an administrator to its 
licensing authority as mandated by the Code of Federal Regulations. 
(30) Substandard Quality of Care - Any deficiency in Resident Behavior and 
Facility Practices, Quality of Life, or Quality of Care that constitutes: 
immediate jeopardy to resident health or safety; or, a pattern of widespread 
actual harm that is not immediate jeopardy; or, a widespread potential for more 
than minimal harm that is not immediate jeopardy, with no actual harm. 
(31) Standard survey - A periodic, resident-centered inspection that gathers 
information about the quality of service furnished in a facility to determine 
compliance with the requirements of participation.
(32) Texas Open Meetings Act - The Government Code, Chapter 551, Subchapters A-
G. 
(33) Texas Open Records Act - The Government Code, Chapter 552, Subchapters A-G. 
(34) Year - A calendar year. 

sec.18.11.Complaint Procedures.
(a) The Texas Department of Human Services (DHS), Credentialing Department, 
shall receive and investigate complaint allegations against a licensed nursing 
facility administrator, including but not limited to, reports of abuse, neglect, 
misappropriation of a resident's property, and reports of violations of Texas 
Health and Safety Code, Chapter 242, Subchapter I or DHS's rules adopted under 
that chapter. 
(b) A person wanting to report a complaint against a licensee shall notify the 
Credentialing Department by calling (512) 231-5815 (for complaints only) or 
writing the department at the following address: Texas Department of Human 
Services, Credentialing Department, Mail Code: Y-978, ATTN: Complaint 
Investigations Section, P.O. Box 149030, Austin, TX 78714-9030. 
(c) Upon receipt of a complaint, the Credentialing Department director or 
designee shall send to the complainant, an official form which the complainant 
shall be requested to complete and return to DHS. DHS shall provide reasonable 
assistance to an individual wishing to file a complaint against a licensee. 
(d) DHS shall utilize the following form which standardizes information 
concerning complaints made about a licensee:
Figure: 40 TAC 18.11(d)
(e) The Credentialing Department director or designee shall receive and 
prioritize complaint allegations that are made against a licensee in the 
following manner:
(1) Priority one investigations are allegations of physical abuse, sexual abuse, 
neglect, death, serious injury, or immediate jeopardy to resident health or 
safety. Priority one investigations shall be initiated by the Credentialing 
Department within 24 hours of receipt or by the next working day. 
(2) Priority two investigations are allegations of inadequate resident care that 
are not life threatening; verbal abuse; or misappropriation of resident 
property. Priority two investigations shall be initiated within 14 calendar days 
following receipt of the complaint. 
(3) Priority three investigations are allegations of misconduct. Priority three 
investigations shall be initiated within 30 calendar days following receipt of 
the complaint. 
(f) An investigation of the licensee and complaint allegation shall be conducted 
by DHS investigative staff to determine compliance with this rule. The 
investigation shall include contact with the complainant and licensee, who shall 
each be afforded an opportunity to provide a written response to the complaint 
allegation. 
(g) After a complaint is filed against a licensee, the Credentialing Department 
shall provide the following information to a complainant and licensee:
(1) the assigned case number; 
(2) the projected time requirements for pursuing the complaint; 
(3) any change in the schedule for pursuing the complaint; and 
(4) DHS's final disposition of the complaint at the conclusion of the 
investigation. 
(h) If special circumstances exist, DHS shall utilize the services of a private 
investigator to conduct complaint investigations when DHS determines it would be 
an efficient and expeditious process. The private investigator shall be obtained 
by following DHS's usual contracting procedures.
(i) The investigation shall be initiated by no later than 30 calendar days after 
the date the written complaint is received by DHS.
(j) The licensee shall make all facility books, records, and other pertinent 
documents maintained by or on behalf of a facility accessible to DHS upon 
request. 
(1) DHS shall photocopy documents, photograph residents, and use any other 
recording devices to preserve evidence that is pertinent to the investigation. 
(2) Examples of records and documents which may be requested or photocopied or 
otherwise reproduced are medical records, including nursing notes, 
incident/accident reports, pharmacy records, physician orders, and bookkeeping 
records. 
(3) When copies are requested, the facility shall charge DHS at a rate not to 
exceed the rate charged by DHS for copies. The administrator shall be 
responsible for providing copies to DHS staff. If copying requires the records 
to be removed from the facility, a representative of the facility shall be 
expected to accompany the records and ensure their order and preservation.
(4) DHS will protect the copies for privacy and confidentiality in accordance 
with recognized standards of medical records practice, applicable state and 
federal laws, and DHS policy. 
(k) The licensee shall not impede an investigation through the harassment or 
intimidation of nursing facility employees or residents.
(l) The Credentialing Department director or designee shall keep an information 
file on each complaint which shall include the following information: 
(1) all persons contacted in relation to the complaint, which must include the 
person who filed the complaint and an explanation for the allegation; 
(2) a summary of findings made at each step of the complaint process; 
(3) an explanation of the legal basis and reason for a complaint that is 
dismissed, or substantiated; and 
(4) other relevant information. 
(m) The Credentialing Department director or designee shall maintain a schedule 
of the projected time frames for pursuing a complaint that shall be kept in the 
information file for the complaint. A change in the schedule shall be recorded 
in the complaint information file and all parties to the complaint must be 
notified not later than seven calendar days after the date the change is made. 
(n) The Credentialing Department director or designee shall notify all parties 
of the status of the complaint on a quarterly basis until final disposition of 
the complaint, unless notice would jeopardize an undercover investigation. 
(o) After completion of the investigation, the person completing the 
investigation shall submit the findings to the Credentialing Department director 
or designee. The complaint investigative report shall state all relevant facts 
and findings obtained during the investigation. The complaint investigative 
report, facts, and findings shall be presented to the committee for 
consideration of adverse licensure action, as specified in sec.18.13(a) of this 
title (relating to Schedule of Sanctions). 
(p) If the committee determines insufficient evidence exists to support or act 
upon the complaint, the complaint shall be dismissed. Written notification of 
the dismissal shall be provided to the complainant and licensee or person 
against whom the complaint has been filed. 
(q) If the committee determines that there are sufficient grounds to support the 
complaint, the committee shall initiate a recommendation for adverse licensure 
action or any other action as authorized by law. 
(r) The resolution of a complaint shall not exceed 90 days from the date the 
written complaint is received to the date of the notification letter that 
informs the licensee of the department's findings and proposed actions. Failure 
to resolve the complaint with 90 days shall not prevent DHS from proceeding with 
appropriate sanctions. 
(s) The commissioner of the Texas Department of Human Services or designee shall 
report to the Texas Board of Human Services quarterly on complaints that have 
been dismissed by DHS. 

sec.18.12. Referrals.
(a) The Credentialing Department shall receive and evaluate referrals from Long 
Term Care-Regulatory when survey findings indicate substandard quality of care. 
(b) The Texas Department of Human Services, upon consideration of all factors 
related to the substandard quality of care finding, shall impose one or more 
sanctions for a statutory or rule violation as set forth in sec.18.13(a) of this 
title (relating to Schedule of Sanctions). 
(c) The procedures for notification of adverse licensure are set forth in 
sec.18.13(e) of this title (relating to Schedule of Sanctions).

sec.18.13. Schedule of Sanctions. 
(a) The Texas Department of Human Services (DHS), upon consideration of all 
factors related to a violation, shall impose one or more of the following 
sanctions for statutory or rule violations: 
(1) assessment of an administrative penalty; 
(2) revocation of a license; 
(3) suspension of a license; 
(4) denial of an application to renew a license; 
(5) issuance of a written reprimand to a licensee; 
(6) requirement of a licensee to participate in additional continuing education 
programs; or 
(7) placement of a licensee on probation. 
(b) The procedures for notification of adverse licensure actions are set forth 
in subsection (e) of this section. DHS shall initiate sanctions on any of the 
following grounds: 
(1) the licensee has wilfully or repeatedly violated a provision of this 
subchapter or a rule adopted under this subchapter; 
(2) the licensee has wilfully or repeatedly acted in a manner inconsistent with 
the health and safety of the residents of a facility of which the licensee is an 
administrator; 
(3) the licensee obtained or attempted to obtain a license through 
misrepresentation or deceit or by making a material misstatement of fact on a 
license application; 
(4) the licensee's use of alcohol or drugs creates a hazard to the residents of 
a facility; 
(5) a judgment of a court of competent jurisdiction finds that the licensee is 
mentally incapacitated; 
(6) the licensee has been convicted in a court of competent jurisdiction of a 
misdemeanor or felony involving moral turpitude; 
(7) the licensee has been negligent or incompetent in the licensee's duties as a 
nursing facility administrator; 
(8) a survey indicates substandard quality of care that is related to an act or 
failure to act by the licensee, which is based on the Standards of Conduct, as 
specified in sec.18.19 of this title (relating to Standards of Conduct); 
(9) the deficiencies cited during a survey are related to an act or failure to 
act by the licensee which is based on the Standards of Conduct, as specified in 
sec.18.19 of this title (relating to Standards of Conduct). 
(c) DHS shall consider the following factors before determining a sanction for a 
statutory or rule violation: 
(1) the seriousness of the violation and the harm or potential harm created to 
the health and safety of facility residents; 
(2) the economic harm to property or environment caused by the violation; 
(3) the efforts of the licensee to correct the violation; and 
(4) the licensee's history of previous violations. 
(d) Probation of sanctions. DHS may probate a sanction and require the licensee 
to: 
(1) periodically report on matters that are the basis for the probation; 
(2) limit practice to only specific areas; or 
(3) obtain continuing education until a satisfactory degree of skill is attained 
in those areas that are the basis of the probation.
(e) Procedures for adverse licensure action. 
(1) If DHS initiates an adverse licensure action, the deputy commissioner of the 
Office of Program Integrity or designee shall give the licensee written notice 
of the reason(s) for the decision to initiate action.
(2) The deputy commissioner of the Office of Program Integrity or designee shall 
provide written notification of the opportunity to a hearing to the licensee in 
accordance with the provisions of the Administrative Procedure Act and hearing 
procedures in Chapter 79, Subchapter Q of this title (relating to Formal 
Appeals). 
(f) Opportunity for a hearing. The licensee is entitled to a hearing in 
accordance with rules promulgated by the Texas Board of Human Services before a 
sanction shall be imposed under this section. 
(g) Suspension of license for failure to pay child support.
(1) On receipt of a final court or attorney general's order suspending a license 
due to failure to pay child support, the Credentialing Department director or 
designee shall immediately determine if DHS has issued a license to the 
obligator named on the order, and, if a license has been issued: 
(A) record the suspension of the license in the department's records; 
(B) report the suspension as appropriate; and 
(C) demand surrender of the suspended license. 
(2) DHS shall implement the terms of a final court or attorney general's order 
suspending a license without additional review or hearing. DHS shall provide 
notice as appropriate to the licensee or to others concerned with the license. 
(3) DHS may not modify, remand, reverse, vacate, or stay a court or attorney 
general's order suspending a license issued under the Family Code, Chapter 232 
as added by Acts 1995, 74th Legislature, Chapter 751, sec.85 and may not review, 
vacate, or reconsider the terms of an order.
(4) A licensee who is the subject of a final court or attorney general's order 
suspending his or her license is not entitled to a refund for any fee paid to 
DHS. 
(5) If a suspension overlaps a license renewal period, an individual with a 
license suspended under this section shall comply with the normal renewal 
procedures in this chapter; however, the license shall not be renewed until 
paragraphs (7) and (8) of this subsection are met. 
(6) An individual who continues to act as a licensed nursing facility 
administrator after the issuance of a court or attorney general's order 
suspending the license is liable for the same civil and criminal penalties 
provided for engaging in the prohibited activity without a license or while a 
license is suspended as any license holder. 
(7) On receipt of a court or attorney general's order vacating or staying an 
order suspending a license, the Credentialing Department director or designee 
shall promptly issue the affected license to the individual if the individual is 
otherwise qualified for the license. 
(8) The individual shall pay a reinstatement fee set out in sec.18.2 of this 
title (relating to Fees) prior to issuance of the license under paragraph (7) of 
this subsection. 
(9) A party may appear in person or be represented by counsel or other 
authorized representative. 

sec.18.14. Violations by an Unlicensed Person. 
(a) An individual shall not act as a nursing facility administrator or represent 
to others that the individual is a nursing facility administrator unless 
licensed under the Texas Health and Safety Code, Chapter 242, Subchapter I. 
(b) An unlicensed person who facilitates or coordinates the provision of 
professional services but does not act as a licensed nursing facility 
administrator shall not be in violation of Texas Health and Safety Code, Chapter 
242, Subchapter I. 
(c) If a licensee is under investigation for an alleged statutory or rule 
violation and allows a license to expire or voluntarily surrenders a license 
before completion of the investigation, the Texas Department of Human Services 
(DHS) maintains the authority to issue a written reprimand and/or assess an 
administrative penalty against the individual at the conclusion of the 
investigation. 
(d) DHS shall file suit in its own name and avail itself of any other action, 
proceeding, or remedy authorized by law to enjoin a violation of Texas Health 
and Safety Code, Chapter 242, Subchapter I or rules adopted under that chapter. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 8, 1998.
TRD-9807500
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: June 1, 1998
Proposal publication date: January 23, 1998
For further information, please call: (512) 438-3765

CHAPTER 19.Nursing Facility Requirements for Licensure and Medicaid 
Certification
The Texas Department of Human Services (DHS) adopts the repeal of 
sec.sec.19.2322 and 19.2324, and new sec.sec.19.2322 and 19.2324 without changes 
to the proposed text published in the March 6, 1998, issue of the Texas Register 
(23 TexReg 2257). The text will not be republished. 
Justification of the repeal of current sections and the adoption of new sections 
having to do with the allocation of medicaid beds is to control the allocation 
of medicaid beds, decertify unused beds and provide for the reallocation of 
unused beds. 
In addition to chapter 242 of the Health & Safety Code and chapter 32 of the 
Human Resources Code, the new sections will function by specifically 
implementing sec.32.0213 of the Human Resources Code. 
To control the number of Medicaid beds allocated to Texas nursing facilities, 
these rules generally restrict applications for contracting for new Medicaid bed 
capacity while providing means by which: counties with high bed occupancy rates 
may be opened for the addition of new beds in order to ensure the availability 
of Medicaid services to recipients in those areas; small facilities may expand 
to up to 60 beds for reasons of efficiency; communities with an immediate need 
for beds may expand bed capacity; beds may be allocated to serve underserved 
minority communities; beds may be allocated to serve persons who have been 
released by the Texas Department of Criminal Justice; beds may allocated to 
serve those individuals suffering from Alzheimer's disease; and the needs of 
private pay patients transferring to Medicaid may be met through the allocation 
of temporary beds. 
To address the large number of beds previously allocated to facilities that 
remain unoccupied and to ensure greater competition, the rules provide a 
mechanism for proportionately reducing that unused capacity on an annual basis. 
This reduction in unused capacity will also prevent facilities with poor records 
from keeping down occupancy rates in smaller counties. 
The rules also provide for the reallocation of beds. To protect Medicaid 
patients, facilities will be screened to determine their health and safety 
record when beds are allocated or reallocated and upon the request for various 
waivers and exceptions in order to ensure that beds are allocated to providers 
with a history of providing quality care. 
The rules are based on the work of a negotiated rulemaking committee composed of 
representatives of the Texas Health Care Association, Texas Association of Homes 
and Services for the Aging, Texas Department on Aging, Texas Advocates for 
Nursing Home Residents, Advocates for Nursing Home Reform, American Association 
of Retired Persons, Texas Health and Human Services Commission, Arboretum Group, 
Texas Hospital Association, and the Texas Department of Human Services. At the 
conclusion of the negotiated rulemaking process, the committee unanimously 
agreed to recommend these rules to DHS in a final report which is available to 
the public. Persons wishing to obtain the report may contact: Julie Mayton, Long 
Term Care Policy Section, P.O. 149030, Mail Code W-519, Austin, Texas 78714 - 
9030. 
The department has determined that these rules regarding bed allocations will 
not affect any real property interests. Accordingly, no takings impact 
assessment is required under sec.2007.043 of the Government Code and sec.2.19 of 
the Attorney General's Guidelines under the Private Real Property Rights 
Preservation Act. See (21 TexReg 387,390) (1996). 
A public hearing was held on March 17, 1998, at which no one offered comments. 
The following comments were received from members of the Texas Association of 
Residential Care Communities and numerous individuals. 
1. Reference - sec.19.2322 (d)(2) Exemptions 
Comment - The legislative mandate dealing with the moratorium on Medicaid 
Nursing Home Beds is very clear. Punishment was not a part of the directive. A 
portion of this rule goes beyond the legislative mandate and threatens the 
financial viability of the nursing home investment. Owners who wish to sell 
their nursing home property to a qualified operator, for whatever reason, should 
not have their property devalued. 
Recommendation - Place a period after the word suspended, and remove the 
following language from the paragraph, "...and any sale of either the NFO or the 
physical plant will not transfer or convey the bed allocation to a buyer. 
However, the department may make an affirmative finding that good cause exists 
to waive this requirement to facilitate a change in ownership to protect 
residents of the facility or for other good cause." 
Comment - This provision does not protect the interest of the lender or 
landlord. The only way to salvage and protect the capital investment may be to 
provide that the NFO sell or transfer its position, probably defaulted, to a 
third party with the approval of the lender and/or landlord. The lender and 
landlord have not been the reason sanctions have been levied, are not in a 
position legally or practically to interfere with the management of a borrower 
or tenant until there is default, and, similar to the DHS, are not allowed to 
pursue remedies until there is a default.
At this point, they must have the flexibility to locate another 
borrower/tenant/NFO and if this necessitates that the NFO transfer its interest 
to the new party, then this should be allowed. Allowing the DHS the flexibility 
to examine this situation could be provided by adding the language identical to 
that found in paragraph (d), paragraph 2 at the end being "or for other good 
cause". This is needed because in a default situation, it is possible that there 
will not be residents in the facility to protect and the lender/landlord must 
have the ability to approach the DHS to find a solution and turn around the 
situation even if it means the NFO transferring its position. 
Response: During the work group's discussions, it became apparent that in 
certain egregious cases, that a culpable owner and/or operator could benefit 
from the sale of a facility, in which actual harm or death had occurred. This 
concept was not acceptable to any member of the work group. If a situation 
occurs that is so egregious, that the department has to take the most extreme 
measures of denying or revoking a license, or one in which a contract was 
terminated and the operator could not get the facility back into compliance, 
then in those situations the work group determined that it was appropriate to 
rescind the bed allocation and not allow these "bad actors" to profit from 
providing a poor quality of care. This was a consensus decision agreed upon by 
all members of the work group. 
Moreover, there is an assumption that lenders/landlords would perform due 
diligence about the applicant's history before loaning funds. In order to ensure 
flexibility and for the protection of residents, sec.19.2322 (d)(2) and 
sec.19.2322 (e) both include the opportunity for a waiver. 
While taking into account the history of facilities that consistently provide 
poor quality of care is not necessarily the primary purpose of the bed 
allocation rules, no criteria for controlling, decertifying or reallocating beds 
is articulated in the statute, other than that the department should take into 
consideration the occupancy rate of facilities. Accordingly, the department must 
carry out this regulatory scheme in the light of the underlying purposes for 
which it is assigned the authority to regulate nursing facilities and purchase 
medicaid services. Even a cursory reading of the department's authority in this 
area, Chapter 242 of the Health & Safety Code and particularly Chapter 32 of the 
Human Resources Code, discloses the legislature's mandate to protect the health 
and safety of nursing facility residents and to efficiently purchase medicaid 
services. 
2. Reference - 19.2322 (e) Loss of allocation due to sanctions. 
Comment - The language "or for other good cause.", was added at the end of 
paragraph (d)(2) to give the Department more latitude in dealing with the bed 
allocation related to the sale of the NFO or the physical plant. The very same 
situation exists in the above referenced rule. Therefore, the same language 
should be added at the end of paragraph (e). It is our belief that this was a 
technical oversight on the part of the stakeholders and TDHS staff. 
Recommendation - The entire paragraph should be deleted, but if it remains, then 
at the end of the paragraph remove the period and add the following language, 
"...or for other good cause." 
Response: The difference in the waiver provisions between the two paragraphs, 
that "......or other good cause" is added as an additional ground for waiver in 
paragraph (d)(2) but not in paragraph (e), was not an oversight. The 
circumstances and extent of the sanctions in the two paragraphs that trigger the 
loss of the bed allocation are different, thus giving rise to somewhat different 
waiver provisions. 
3. Reference - 19.2322 (e) Loss of allocation due to sanctions 
Comment -This rule goes beyond the legislative mandate and threatens the 
financial viability of the nursing home as an investment. Owners who wish to 
sell their nursing home property to a qualified operator, for whatever reason, 
should not have their property devalued. 
Being able to contract for Medicaid recipients has provided stability to the 
nursing facility. This factor has given lenders the comfort level to loan money 
to develop nursing home projects. This rule will undermine lender's confidence 
and could destroy the ability of owners/operators to continue to develop new 
projects, replace old facilities or add on to existing buildings. This rule goes 
too far and is not needed. 
Recommendation - Delete section (e) in its entirety. 
Response: During the work group's discussions, it became apparent that in 
certain egregious cases, that a culpable owner and/or operator could benefit 
from the sale of a facility, in which actual harm or death had occurred. This 
concept was not acceptable to any member of the work group. If a situation 
occurs that is so egregious, that the department has to take the most extreme 
measures of denying or revoking a license, or one in which a contract was 
terminated and the operator could not get the facility back into compliance, 
then in those situations the work group determined that the only action to take 
was to rescind the bed allocation and not allow these "bad actors" to profit 
from providing a poor quality of care. This was a consensus decision agreed upon 
by all members of the work group. 
In order to ensure flexibility and for the protection of residents, Sections 
sec.19.2333(d)(2) and sec.19.2322 (e) both include waivers to those 
requirements. While taking into account the history of facilities that 
consistently provide poor quality of care is not necessarily the primary purpose 
of the bed allocation rules, no criteria for controlling, decertifying or 
reallocating beds is articulated in the statute, other than that the department 
should take into consideration the occupancy rate of facilities. Accordingly, 
the department must carry out this regulatory scheme in the light of the 
underlying purposes for which it is assigned the authority to regulate nursing 
facilities and purchase medicaid services. Even a cursory reading of the 
department's authority in this area, chapter 242 of the Health & Safety Code and 
particularly chapter 32 of the Human Resources Code, discloses the legislature's 
mandate to protect the health and safety of nursing facility residents and to 
efficiently purchase medicaid services. 
4. Reference - 19.2322 (g)(4)(B)(i) 
Comment - In the version of these rules "signed off" on by all stakeholders, the 
first sentence reads as follows, "(i) Regardless of any sanctions imposed in 
paragraph (4) of this section. . . ". In the version that is printed in the 
Texas Register the same sentence reads as follows, "(i) Regardless of any 
sanctions imposed in subparagraph (A) of this paragraph, " This change is not 
CRITICAL, but it is far less helpful to the reader and is not entirely logical 
when reading the entire paragraph as a whole. For whatever reason the change was 
made, it does not help the rule...it hurts it. 
Recommendation - Restore the language that was approved by all stakeholders as 
follows: "(i) Regardless of any sanctions imposed in paragraph (4) of this 
section. .." 
Response: This is the correct way to reference subparagraph (A) within paragraph 
(4) in the Texas Register format. The reference is to the policy in subparagraph 
(A). 
4. Reference - 19.2324(c)(8)(9). Secondary Selection Process - New Construction 
Comment: (8) (9) These provisions deal with 12 months to complete foundation 
work on new construction and 24 months to complete the project. 
These sections state that the DHS allows no extensions for defaults of the 12 
month deadline. The DHS should be granted discretion to extend this deadline as 
it is more important than the 24 month deadline. The reason the DHS needs this 
discretion is because of delays necessitated by third party financing and 
permitting. Most lenders will not allow a project to go forward until the 
Medicaid certification is received from the DHS. Twelve months is typically not 
enough time to obtain HUD insured financing. Twelve months is typically not 
enough time to go through the permitting process in cities such as Austin which 
impose very strict and time consuming requirements prior to issuing a building 
permit. 
Recommendation: Should be amended to provide that "at its sole option, DHS may 
grant an extension to a potential contractor who anticipates default on the 12 
month deadline if the potential contractor submits to DHS written documentation 
explaining the reasons for the delay in completing foundation work." You can 
check with DHS staff regarding its history in dealing with HUD insured projects, 
weather delayed projects, and municipal authorization delays to proceed with 
projects where 12 months is not realistic in the regulatory and lending 
environment today. This request is similar to language found in l 9.2322(d)(3) 
where the DHS may grant an extension for extenuating circumstances in the event 
replacement facilities are not completed within the time frame required. 
Comment: In reference to 19.2324(c)(10), if DHS is given discretion to agree 
that construction delays were caused by third parties, then liquidated damages 
should not be assessed or should at least be discretionary. 
Response: The department disagrees. The twelve (12) and twenty-four (24) month 
periods for construction deadlines are adequate. The department is not in a 
position to easily or efficiently determine whether or not delays are caused by 
third parties. 

SUBCHAPTER X.Requirements for Medicaid-Certified Facilities
40 TAC sec.sec.19.2322, 19.2324
The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 
32, which authorizes the department to administer public and medical assistance 
programs; and under Texas Government Code sec.531.021, which provides the Health 
and Human Services Commission with the authority to administer federal medical 
assistance funds. 
The repeals implement the Human Resources Code, sec.sec.22.001-22.030 and 
sec.sec.32.001-32.042. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 8, 1998.
TRD-9807489
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: June 1, 1998
Proposal publication date: March 6, 1998
For further information, please call: (512) 438-3765

40 TAC sec.sec.19.2322, 19.2324
The new sections are adopted under the Human Resources Code, Title 2, Chapters 
22 and 32, which authorizes the department to administer public and medical 
assistance programs; and under Texas Government Code sec.531.021, which provides 
the Health and Human Services Commission with the authority to administer 
federal medical assistance funds. 
The new sections implement the Human Resources Code, sec.sec.22.001-22.030 and 
sec.sec.32.001-32.042. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 8, 1998.
TRD-9807490
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: June 1, 1998
Proposal publication date: March 6, 1998
For further information, please call: (512) 438-3765

PART II. Texas Rehabilitation Commission
CHAPTER 104. Informal and Formal Appeals by Applicants/Clients of Decisions by a 
Rehabilitation Counselor or Agency Official
40 TAC sec.104.5
The Texas Rehabilitation Commission adopts an amendment to sec.104.5, concerning 
formal appeal, with changes to the proposed text as published in the March 13, 
1998, issue of the Texas Register (23 TexReg 2774). 
The section is being adopted to clarify the Texas Rehabilitation Commission's 
Formal Appeal process. 
One comment was received from the Advocacy, Inc. in regards to this proposed 
amendment. The comment stated that proposed sec.104.5(c)(2)(A)(iv) would allow 
an Impartial Hearing Officer broad discretion that could lead to unilateral 
changes to procedural rules during a hearing, which if done without the consent 
of the parties, could prejudice the ability of an appellant to fully present his 
or her case. It was recommended: that the proposed rule be expanded to include a 
provision that requires the Impartial Hearing Officer to seek the agreement of 
both parties when a procedural deviation is needed; that a justification for the 
deviation to be included in the written record, along with an explanation of how 
the decision to deviate is in the interest of justice and/or reasonably 
necessary to expedite the proceedings; and that the rule include references to 
all of, and solely to, the specific sections and subsection of existing 
procedural rules of the hearing process to which this rule applies. 
In response to this comment, the Texas Rehabilitation Commission is adopting the 
amendment with changes to incorporate recommended changes. 
The amendment is adopted under the Texas Human Resources Code, Title 7, Chapter 
111, sec.111.018 and sec.111.023, which provides the Texas Rehabilitation 
Commission with the authority to promulgate rules consistent with Title 7, Texas 
Human Resources Code. 

sec.104.5. Formal Appeal. 
(a) The formal appeal process commences with the filing of a Petition for 
Administrative Hearing with the Commissioner's Office for Administrative 
Hearings. The hearing must be held within 45 days of an individual's request for 
review, unless informal resolution is achieved prior to the 45th day, or the 
parties agree to a specific extension of time. 
(b) (No change.) 
(c) Impartial Hearing Officer. 
(1) (No change.) 
(2) Powers and Duties. 
(A) The IHO shall have the authority and duty to: 
(i) (No change.) 
(ii) take action to avoid unnecessary delay in the disposition of the 
proceeding; 
(iii) maintain order; and 
(iv) permit deviations from the rules and procedures prescribed in subsections 
(e)-(j) of this section, except subsection (j)(4)(F), in the interest of justice 
or to expedite the proceedings. If prior to adjournment of a hearing either 
party disagrees with a ruling or otherwise so requests, the IHO shall include in 
the written record a justification, and an explanation of how the decision is in 
the interest of justice and/or reasonably necessary to expedite the proceedings. 
Actions taken under this subsection shall be limited to procedural matters, and 
no party shall lose any substantive rights.
(B)-(D) (No change.) 
(d)-(k) (No change.) 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 4, 1998.
TRD-9807264
Charles Schiesser
Chief of Staff
Texas Rehabilitation Commission
Effective date: May 24, 1998
Proposal publication date: March 13, 1998
For further information, please call: (512) 424-4050

PART XIX. Texas Department of Protective and Regulatory Services
CHAPTER 700.Child Protective Services
The Texas Department of Protective and Regulatory Services (TDPRS) adopts 
amendments to sec.sec.700.316 and 700.2501, in its Child Protective Services 
chapter. The amendment to sec.700.316 is adopted with changes to the proposed 
text published in the January 16, 1998, issue of the Texas Register (23 TexReg 
414). The amendment to sec.700.2501 is adopted without changes to the proposed 
text and will not be republished. The justification for the amendments is to 
take advantage of new federal regulations regarding contracting with for-profit 
residential treatment centers in order to maximize the resources available using 
the new less restrictive federal regulations. Federal law has changed to allow 
Title IV-E payments to for-profit institutions. The rules, as amended, will 
allow for continuity of care and provide more placements for Levels of Care V 
and VI, where the need is greatest. 
The amendments will function by ensuring adequate resources for children in 
TDPRS conservatorship. 
During the public comment period, TDPRS received five sets of comments from the 
Brown Schools, one set of comments from the Texas Children's Provider Coalition, 
and one set of comments from the National Association of Psychiatric Treatment 
Centers for Children, all in support of the proposal. After the comment period 
was over, TDPRS received seven additional sets of comments from the Texas 
Network of Youth Services, Catholic Family Service, Inc., East Texas Open Door, 
South Plains Children's Shelter, Inc., Sheltering Arms, Juliette Fowler Homes, 
and Central Texas Youth Services Bureau. Six were opposed to the proposal. South 
Plains Children's Shelter, Inc. was supportive of the proposal only if it was 
for Levels of Care V and VI. After careful consideration of all comments, TDPRS 
is amending sec.700.316(4)(D) to add, "Children can be admitted to a for-profit 
licensed residential treatment center at LOC 5 and LOC 6 only. If a child's 
level of care is subsequently reduced to LOC 4 only, the for-profit provider may 
continue to care for the child, if doing so is in the child's best interest, 
until the child's functioning stabilizes and TDPRS can arrange a planned move to 
an appropriate placement." This amendment will allow for continuity of care, but 
restrict initial placements to children with Level of Care V and VI needs, which 
are most appropriate for for-profit residential treatment facilities, where the 
need is greatest. 

SUBCHAPTER C.Eligibility for Child Protective Services
40 TAC sec.700.316
The amendment is adopted under the Texas Family Code, Title 5, Chapters 261 and 
264, which authorizes the department to provide services to alleviate the 
effects of child abuse and neglect. In addition, the amendment is adopted under 
Public Law No. 96-272, Title I, which authorizes the department to administer 
foster-care and adoption assistance programs provided for under the Social 
Security Act, Title IV-E. 
The amendment is also adopted under the Human Resources Code (HRC), Chapter 40, 
which describes the services authorized to be provided by the Texas Department 
of Protective and Regulatory Services; authorizes the department to enter into 
agreements with federal, state, or other public or private agencies or 
individuals to accomplish the purposes of the programs authorized by the HRC; 
grants authority to contract to that department; and establishes the 
department's rulemaking authority. 
The amendment implements the HRC, Chapter 40, which authorizes the department to 
enter into agreements with federal, state, or other public or private agencies 
or individuals to accomplish the purposes of the programs authorized by the HRC 
and which authorizes the department to enter into contracts as necessary to 
perform any of its powers or duties. 

sec.700.316.Eligibility Requirements for Title IV-E, MAO, and State-Paid Foster 
Care Assistance. 
The child must meet all of the following criteria to be eligible for Title IV-E, 
Medical Assistance Only (MAO), or state-paid foster care assistance.
(1)-(3) (No change.) 
(4) Placement. The child must be receiving care in Texas in a licensed, 
certified, or verified foster home or a licensed, private, nonprofit child-
caring institution approved for TDPRS foster-care assistance, except in the 
following circumstances. 
(A)-(C) (No change.) 
(D) If the child is placed in a licensed residential treatment center, the 
facility may be for profit. Children can be admitted to a for-profit licensed 
residential treatment center at LOC 5 and LOC 6 only. If a child's level of care 
is subsequently reduced to LOC 4 only, the for- profit provider may continue to 
care for the child, if doing so is in the child's best interest, until the 
child's functioning stabilizes and TDPRS can arrange a planned move to an 
appropriate placement. 
(5)-(8) (No change.) 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 5, 1998.
TRD-9807290
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: June 1, 1998
Proposal publication date: January 16, 1998
For further information, please call: (512) 438-3765

SUBCHAPTER Y.Contracting with Licensed Residential Child-Care Providers
40 TAC sec.700.2501
The amendment is adopted under the Texas Family Code, Title 5, Chapters 261 and 
264, which authorizes the department to provide services to alleviate the 
effects of child abuse and neglect. In addition, the amendment is adopted under 
Public Law No. 96-272, Title I, which authorizes the department to administer 
foster-care and adoption assistance programs provided for under the Social 
Security Act, Title IV-E. 
The amendment is also adopted under the Human Resources Code (HRC), Chapter 40, 
which describes the services authorized to be provided by the Texas Department 
of Protective and Regulatory Services; authorizes the department to enter into 
agreements with federal, state, or other public or private agencies or 
individuals to accomplish the purposes of the programs authorized by the HRC; 
grants authority to contract to that department; and establishes the 
department's rulemaking authority. 
The amendment implements the HRC, Chapter 40, which authorizes the department to 
enter into agreements with federal, state, or other public or private agencies 
or individuals to accomplish the purposes of the programs authorized by the HRC 
and which authorizes the department to enter into contracts as necessary to 
perform any of its powers or duties. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 5, 1998.
TRD-9807291
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: June 1, 1998
Proposal publication date: January 16, 1998
For further information, please call: (512) 438-3765

CHAPTER 725.General Licensing Procedures
SUBCHAPTER P.Alternative Accreditation
40 TAC sec.sec.725.1501-725.1508, 725.1515-725.1520
The Texas Department of Protective and Regulatory Services (TDPRS) adopts new 
sec.sec.725.1501-725.1508 and 725.1515-725.1520, in its General Licensing 
Procedures chapter. New sec.sec.725.1502, 725.1505, 725.1506, 725.1508, and 
725.1519 are adopted with changes to the proposed text published in the December 
19, 1997, issue of the Texas Register (22 TexReg 12467). New sec.sec.725.1501, 
725.1503, 725.1504, 725.1507, 725.1515-725.1518, and 725.1520 are adopted 
without changes to the proposed text and will not be republished. The new 
sections are adopted in new Subchapter P, Alternative Accreditation. The purpose 
of the changes to the proposal is to clarify the rules and to allow flexibility 
to program applicants and participants.
The justification for the new sections is to create an alternative accreditation 
program as required by the 75th Legislature. The approved accreditation 
organizations must publish, promulgate, and require compliance with standards 
and inspection procedures which meet or exceed the state's minimum requirements 
for child-care facilities and child-placing agencies. 
The new sections will function by ensuring an alternative to licensing as 
required by the 75th Legislature. Child-care facilities and child-placing 
agencies who choose to participate in the alternative accreditation program will 
pay less to TDPRS in fees than they are required to pay under licensing. During 
the public comment period, TDPRS received comments from the Texas Association 
for the Education of Young Children, the Council on Accreditation of Services 
for Families and Children, Inc., the Texas Association of Christian Child-Care 
Agencies, Inc., JBM Enterprises Inc., and several individuals. A summary of the 
comments and TDPRS's responses follow: 
Comment regarding the nature and purpose of the Alternative Accreditation 
Program (sec.725.1501): The commenter expressed concern about the health and 
safety of children residing in or served by child-care facilities or child-
placing agencies accredited under the Alternative Accreditation Program. 
Response: The Legislature mandated the Alternative Accreditation Program. TDPRS 
will continue to work hard to meet its legislated purpose of protecting the 
health, safety, and well-being of children residing in child-care facilities 
both through the licensing program and through its role in the Alternative 
Accreditation Program. 
Comment regarding the nature and purpose of the Alternative Accreditation 
Program (sec.725.1501): The commenter stated that the Alternative Accreditation 
Program degraded the child care industry and felt that a cost comparison 
analysis should be conducted to justify department resources being spent on the 
Alternative Accreditation Program. 
Response: The Legislature mandated the Alternative Accreditation Program. TDPRS 
will continue to work hard to meet its legislated purpose of protecting the 
health, safety, and well-being of children residing in child-care facilities 
both through the licensing program and through it's role in the Alternative 
Accreditation Program. TDPRS is not contracting with the accreditation 
organizations and it is not necessary to conduct a cost-analysis study because 
TDPRS is carrying out a legislative mandate. 
Comment regarding the nature and purpose of the Alternative Accreditation 
Program (sec.725.1501): Two commenters stated that the public should be made 
aware through an education campaign about the difference between traditional, 
voluntary accreditation, and alternative accreditation as defined in this
program.
Response: TDPRS plans to address this issue when implementing the Alternative 
Accreditation Program. 
Comment regarding the nature and purpose of the Alternative Accreditation 
Program (sec.725.1501): The commenter stated its position that the best 
relationship between an accreditation organization and a public regulatory body 
should be one of partnership, wherein the regulatory body ensures the health and 
safety while the accreditation body is responsible for voluntary accreditation. 
This commenter also expressed concern about the philosophical distinction 
between the practice of licensing, which is a baseline quality assurance, and 
accreditation, which is intended to insure a higher level standard of quality 
and also suggested that TDPRS work to guarantee best practices for the children 
of the state. 
Response: The Legislature mandated the Alternative Accreditation Program 
(sec.725.1501). TDPRS appreciates the comments concerning the relationship 
between an accreditation organization and a regulatory body. TDPRS certainly 
would not want to be in an adversarial relationship with an accreditation 
organization; however, TDPRS must carry out the statute. TDPRS is willing to 
partner with accreditation organizations as the law allows. TDPRS also intends 
to carefully examine applications for approval as an accreditation organization 
to ensure the highest quality standards consistent with the legislation.
Comment regarding the qualifications for an accreditation organization 
(sec.725.1502 (1)): The commenter objected to the requirement that an 
accreditation organization, in order to qualify for approval by TDPRS, have 
experience in the child-care and/or child-placing industry and a credible 
background in accreditation. The commenter stated that these requirements exceed 
the qualifications mandated by the statute. The commenter is concerned that 
newly formed organizations would not qualify under these rules. The commenter 
proposed that an accreditation organization, in order to qualify for approval by 
TDPRS, be established for the purposes of accrediting child-care and/or child- 
placing organizations, and has qualified staff. 
Response: Section 725.1502 (1) is amended to allow an accreditation organization 
to gain approval from TDPRS without organizational experience if the 
organization employs at least one executive level staff who: (1) has direct 
responsibility for the organization's operations; and (2) has significant 
supervisory or administrative experience in the child care industry for the type 
of facility the organization is seeking approval to accredit. The rule section 
also allows an accreditation organization without a credible background in 
accreditation to gain approval from TDPRS if the organization employs at least 
one executive level staff who: (1) has direct responsibility for the 
organization's operations; and (2) has experience as an accreditor or experience 
in regulating the delivery of services similar to child care or child placing 
services for the type of facility the organization is seeking approval to 
accredit. 
Comment regarding the qualifications for an accreditation organization 
(sec.725.1502 (1)): The commenter stated that the level of expertise required 
for the staff of an accreditation organization is minimal and not the same as 
the requirements for TDPRS staff with similar responsibilities. 
Response: TDPRS has tried to balance the regulations to reflect all of the 
comments on the level of experience necessary for approval as an accreditation 
organization. 
Comment regarding the qualifications for an accreditation organization 
(sec.725.1502 (1)): The commenter proposed that, in order to qualify for 
approval by TDPRS, an accreditation organization be a statewide organization 
that has an unblemished record, a history of successful compliance with meeting 
state standards, and a minimum of five years experience in early care and 
education and in administering programs designed specifically to address the 
developmental needs and abilities of children. 
Response: TDPRS has tried to balance the regulations to reflect all of the 
comments on the level of experience necessary for approval as an accreditation 
organization. 
Comment regarding the qualifications for an accreditation organization 
(sec.725.1502 (2)): The commenter objected to the requirement that accreditation 
organizations promulgate, publish, and require compliance with standards and 
inspection procedures that meet or exceed the state's minimum requirements for 
child-care facilities or child-placing agencies. The commenter proposed that 
TDPRS create a new set of minimum standards specialized for faith-based 
programs. 
Response: The Legislature does not distinguish between faith-based and non-
faith- based organizations and the statute itself requires that the 
accreditation organization meet or exceed the state's minimum requirements in 
sec.42.102 (1) of the Human Resources Code. These regulations are intended to 
implement the statute which was designed to provide the same protection to 
children in accredited facilities and agencies as those children in licensed 
facilities and agencies. 
Comment regarding the qualifications for an accreditation organization 
(sec.725.1502 (2)): The commenter stated that an accreditation organization's 
inspection procedures should match those in place for programs licensed by TDPRS 
and should include the use of differential monitoring plans that distinguish 
between levels of compliance and noncompliance, the clear posting of monitoring 
visit results, and a mandatory annual unannounced visit. 
Response: Section 42.102 (1) requires accreditation organizations to promulgate, 
publish, and require compliance with inspection procedures that meet or exceed 
the state's minimum requirements for child-care facilities and child-placing 
agencies. Section 725.1502 (2) reflects that statutory requirement. Section 
725.1502 (5) requires that the accreditation organization meet or exceed TDPRS's 
policy of communication with parents and guardians of children in care.
Comment regarding the qualifications for an accreditation organization 
(sec.725.1502 (3)): The commenter proposed that TDPRS accept degrees and 
certificates awarded by Bible Colleges and other religious institutions and 
create provisions for accepting verified experience in lieu of academic 
experience when reviewing an accreditation organization's qualifications for 
accredited child-care administrators. 
Response: Section 725.1502 (3) is taken from statute (sec.43.003 (c) of the 
Human Resources Code). Faith-based and non-faith-based organizations must be 
treated fairly and both must meet the state's qualifications for a child-care 
administrator. The qualifications set by stature are laid out in sec.43.004 of 
the Human Resources Code and allow for a variety of work experience and 
education. This statute currently allows TDPRS to accept a high school degree 
plus six years experience in "child care or a closely related field" as one of 
the minimum qualifications for child-care administrators. 
Comment regarding the qualifications for an accreditation organization 
(sec.725.1502 (4)): The commenter objected to the rules prohibiting any member 
of an accreditation organization's governing board from having "control over the 
operation" of a child-care facility or child-placing agency accredited by the 
organization. The commenter stated that TDPRS exceeded the statute, which only 
prohibits any members of the accreditation organization's governing board from 
having proprietary interest in of a child- care facility or child-placing agency 
accredited by the organization. 
Response: Section 725.1502 (4) has been clarified based on comments received to 
allow governing board members who have non-proprietary or non-financial 
controlling interest in facilities or agencies accredited by the accreditation 
organization to be approved for accreditation as long as the organization has 
policies that safeguard against any conflict of interest between an accredited 
facility or agency and its accreditor. 
Comment regarding the qualifications for an accreditation organization 
(sec.725.1502 (6)): The commenter objected to the requirement that an approved 
accreditation organization, in order to qualify for approval by TDPRS, be able 
to show evidence of adequate financial resources. The commenter stated that most 
faith-based ministries rely on donations and would not be able to demonstrate 
adequate financial resources. 
Response: The regulations require an accreditation organization seeking approval 
from TDPRS to show evidence of adequate financial resources in order to ensure 
that the organization demonstrates a financial commitment to the safeguard and 
care of the children in the accredited child-care facilities and child-placing 
agencies and which will enable them to perform their statutory obligations and 
to remain in business. These qualifications must apply to faith-based and non-
faith-based organizations. 
Comment regarding the approval of an accreditation organization (sec.725.1504): 
The commenter recommended that an advisory committee of early childhood 
professionals, parents, and members from existing accrediting bodies be created 
to oversee the approval of accreditation organizations. 
Response: TDPRS will include its advisory committee in the approval process. 
Comment regarding the approval of an accreditation organization 
(sec.sec.725.1504 and 725.1508): The commenter objected to the one-year time 
frame on the approval of an accreditation organization and proposed that an 
accreditation organization's approval be valid for five years. 
Response: Sections 725.1504 (d) and 725.1508 (c) are written to comply with 
sec.42.103 (b) and (c) of the Human Resources Code, which requires that approval 
of an accreditation organization be valid for one year and that the renewal 
procedure be annual. 
Comment regarding the criminal history and background checks conducted as part 
of the Alternative Accreditation Program (sec.725.1505 (3)): The commenter 
objected to the requirement that the accreditation organization furnish TDPRS 
with the results of criminal and background check results conducted on facility 
and agency staff and proposed that the accreditation organizations furnish TDPRS 
with an affidavit once every year stating that the necessary checks have been 
conducted. 
Response: The requirement in sec.725.1505 (3) is intended to serves two 
purposes. First, it allows TDPRS to be assured that the criminal and background 
checks have been conducted. Secondly, it avoids TDPRS having to duplicate the 
check and charge the child- care facility or child-placing agency the costs in 
order to fulfill TDPRS's obligations under sec.42.105 (b). Through these rules, 
TDPRS will only need to do second checks when a sufficient time has elapsed 
between the accreditation of the facility or agency by the accreditation 
organization and the facility's or agency's registration with TDPRS to operate 
under accreditation. 
Comment regarding the notification of revocation or withdrawal of accreditation 
(sec.725.1505 (6)): The commenter objected to the requirement that the 
accreditation organization notify TDPRS no later than the seventh day after the 
date on which the organization revokes or withdraws the accreditation of a 
child-care facility, child-placing agency, or child-care administrator and 
proposed that TDPRS note the method of notification and accept a 30-day 
notification period.
Response: Section 725.1505 (6) was written to comply with sec.42.108 of the 
Human Resources Code, which requires notification of revocation or withdrawal in 
seven days to TDPRS by the accreditation organization. TDPRS agrees with the 
comment that the regulations should address the accepted methods of 
notification. TDPRS will accept notification by facsimile or telephone as long 
as a letter of notification is sent by certified mail the same day. Section 
725.1505 (6) is amended to reflect that change. These rules and the underlying 
legislation intend to prevent a revoked facility, agency, or child-care 
administrator from operating for any longer than necessary without either a 
valid accreditation or a license issued by TDPRS. 
Comment regarding background and criminal histories (sec.sec.725.1506 (b) and 
(c) and 725.1519 (b) and (c)): The commenter objected to the prohibition of 
child-care administrators and child-care facility and child-placing agency staff 
who have a "confirmed history of abuse or neglect" from working and proposed 
that only those staff and child-care administrators who have been "convicted of 
abuse or neglect" be prevented from working in accredited facilities or 
agencies. The commenter also proposed an internal administrative appeal process 
prior to the formal appeal process for addressing criminal and background check 
results and that TDPRS distinguish between crimes of which a person can have 
been convicted and continue working during appeal and those crimes of which a 
person convicted could not work during appeal. 
Response: Under sec.42.105 of the Human Resources Code, the Legislature has 
mandated that an approved accreditation organization and TDPRS review the 
general character and fitness of child-care administrators and other staff of 
accredited chid-care facilities and child-placing agencies seeking 
accreditation, using both convictions of criminal activity and TDPRS's central 
registry of reported cases of child abuse and neglect. This regulation 
implements that requirement. Had the Legislature intended for an approved 
accreditation organization and TDPRS only to check convictions, the approved 
accreditation and TDPRS would not have been directed to check its central 
registry. The wording in sec.sec.725.1506 (b) and (c) and 725.1519 (b) and (c) 
has been changed from "confirmed history of abuse or neglect" to "final finding 
of abuse or neglect" for purposes of clarification. Child-care administrators 
and other individuals and organizations do have due process hearings available 
to them under Subchapters OO, PP, and YY of Chapter 725 of the Texas 
Administrative Code. TDPRS believes that the procedures for administrative 
review will serve the purpose of an internal review. These processes are 
designed to meet the requirements of Texas State law and afford adequate due 
process consistent with the protection of children in care. 
Comment regarding background and criminal histories (sec.sec.725.1506 (b) and 
(c) and 725.1519 (b) and (c)): The commenter recommended that the same criteria 
and procedures used by TDPRS to handle criminal history checks be applied to 
programs which operate through the alternative accreditation system. 
Response: Sections 725.1506 (b) and (c) and 725.1519 (b) and (c) were written to 
meet the statutory requirements of sec.42.105 of the Human Resources Code. TDPRS 
will work with accreditation organizations to ensure that no endangering persons 
have contact with children in care. 
Comment regarding the renewal of an accreditation organization's approval 
(sec.725.1508 (b)): The commenter sought clarification about the procedure for 
the renewal of TDPRS's approval of an accreditation organization, specifically 
whether the renewal will be automatic or will require an application for 
renewal.
Response: TDPRS agrees that the rule needs to address how the renewal process in 
sec.725.1508 (b) is begun and TDPRS has amended subsection (a) of that rule to 
require a request from the accreditation organization for renewal of TDPRS's 
approval. 
Comment regarding inspections of accredited child-care facilities and child-
placing agencies (sec.725.1517): The commenter expressed concern about TDPRS's 
limited authority to inspect child-care facilities and child-placing agencies 
holding a certificate to operate under accreditation. 
Response: The Legislature gave TDPRS limited authority to inspect child-care 
facilities and child-placing agencies holding a certificate to operate under 
accreditation in sec.42.110 of the Human Resources Code. Section 725.1517 was 
written to reflect that statute. The accreditation organization has the 
authority and responsibility for all inspections not directed to TDPRS under 
sec.42.110 and any approved accreditation organization should have inspection 
procedures that meet or exceed those required by the state. TDPRS also intends 
to carefully examine applications for approval as an accreditation organization 
to ensure the highest quality standards and inspection procedures consistent 
with the legislation. 
Comment regarding the registration of accredited facilities and agencies 
(sec.sec.725.1515- 725.1519): The commenter objected to the requirement that 
accredited child-care facilities and child-placing agencies register with TDPRS 
because the commenter believes that TDPRS should monitor the accreditation 
organizations and the accreditation organizations should monitor the accredited 
facilities and child-placing agencies. The commenter believes that the 
Alternative Accreditation Program was created by the Legislature to isolate 
faith-based child-care facilities from direct state control. 
Response: Sections 42.041 (a) and 42.076 (a) of the Human Resources Code 
prohibit a child-care facility or child-placing agency from operating without 
either a license or a certificate to operate under accreditation issued by 
TDPRS. Furthermore sec.sec.42.104 and 42.106 of the Human Resources Code 
establish the procedures for the registration of accredited facilities and 
agencies. The statue and the rules give a great deal of authority to the 
accreditation organization. The actions taken by TDPRS are pursuant to the 
statutory requirements created to protect the health, safety, and well-being of 
the children served by the alternative accreditation program. This law applies 
to both faith-based and non-faith- based organizations alike and our regulations 
under this statute provide the minimum statutory action deemed necessary by the 
Legislature to safeguard the health, safety, and well-being of children. 
Comment regarding the emergency suspension, denial, and revocation of a child-
care facility or child-placing agency (sec.sec.725.1518 and 725.1519): The 
commenter proposed that in all cases other than those involving the physical 
abuse of children, the accreditation organization, not TDPRS, be the authority 
designated to suspend, deny, or revoke an accredited child-care facility's or 
child-placing agency's certificate to operate under accreditation. The commenter 
proposed an immediate appeal process for emergency suspension, denial, and 
revocation prior to the appeal process governed by Chapter 2001, Government 
Code. The commenter also proposed that, in a situation calling for the emergency 
suspension of an accredited child-care facility or child-placing agency, the 
accreditation organization and local law enforcement both be notified and 
present at the facility or agency along with TDPRS. 
Response: Only TDPRS can suspend, deny, or revoke a certificate which it grants. 
An accreditation organization has the authority to suspend, deny, or revoke it's 
own accreditation which automatically invalidates TDPRS's certificate to operate 
under accreditation under sec.42.109 of the Human Resources Code. Regarding the 
emergency suspension of TDPRS's certificate to operate under accreditation: 
sec.725.1518 implements sec.42.111 of the Human Resources Code and the 
administrative procedures are those set out in Chapter 2001, Government Code and 
TDPRS's rules. An internal appeal procedure for emergency suspension would not 
be effective as the emergency suspension only lasts for ten days. The time limit 
and the emergency nature of emergency suspension preclude having accreditation 
organization and local law enforcement agency presence at the inspection. 
Regarding the denial or revocation of a certificate to operate under 
accreditation: sec.725.1519 is intended to implement sec.42.105 (b) of the Human 
Resources Code and the internal procedures found in Subchapters OO, PP, and YY 
of Chapter 725 of the Texas Administrative Code. TDPRS's procedures are intended 
to be consistent with Texas State law and afford adequate due process consistent 
with the protection of children in care. 
Comment regarding the denial and revocation of a child-care facility or child-
placing agency (sec.725.1519): The commenter recommended that the same criteria 
and procedures used by TDPRS to handle the revocation of a child-care facility 
or child-placing agency be applied to programs which operate through the 
alternative accreditation system. 
Response: Section 42.105 (b) of the Human Resources Code gives TDPRS the 
authority to not issue, not renew, or revoke a facility's or agency's 
certificate to operate under accreditation based on the results of a background 
or criminal history check conducted by TDPRS. Section 42.110 (c) of the Human 
Resources Code gives TDPRS authority to prescribe corrective action and follow-
up with inspections to accredited facilities and agencies under the 
circumstances outlined in sec.42.110 (a) of the Human Resources Code. Section 
42.111 of the Human Resources Code gives TDPRS authority to issue an emergency 
suspension to accredited facilities and agencies under the circumstances 
outlined in sec.42.111 (a) of the Human Resources Code. Sections 725.1517, 
725.1518, and 725.1519 reflect these statutory authorities. All other adverse 
action activities are the responsibility of the accreditation organization. 
Comment regarding the accreditation process: The commenter proposed that 
regulations allow for a provisional accreditation process consistent with the 
provisional licensing process. 
Response: The Legislature specifically authorized provisional licensing and not 
provisional accreditation. TDPRS believes that under these circumstances, the 
Legislature did not intend for there to be a provisional accreditation process. 
The new sections are adopted under the Human Resources Code (HRC), Title 2, 
Chapter 42, which authorizes the department to administer general child-placing 
and child care licensing programs. 
The new sections implement the HRC, Chapter 42, Subchapter E, sec.sec.42.101- 
42.111. These sections provide for the procedures for approval of an 
accreditation organization and renewal of that approval, as well as the 
certification of facilities and agencies to operate under accreditation, 
emergency suspension of such facilities and agencies, and withdrawal or 
revocation of such facilities and agencies, as well as inspections of such 
facilities and agencies under limited circumstances. 

sec.725.1502. Accreditation Organization. 
To qualify for approval by the Texas Department of Protective and Regulatory 
Services (TDPRS) under sec.725.1501 of this title (relating to the Alternative 
Accreditation Program) and under sec.725.1527 of this title (relating to 
Alternative Accreditation of Child-Care Administrators), an accreditation 
organization must: 
(1) be a recognized private organization that meets the qualifications set out 
in subparagraphs (A)-(C) of this paragraph: 
(A) have experience in the child care and/or child-placing industry or have at 
least one executive level staff with direct responsibility for operations, who 
has significant supervisory or administrative experience in the child care 
industry for the type of facility for which the organization is seeking approval 
to accredit; 
(B) have a credible background in accreditation or have at least one executive 
level staff with direct responsibility for operations, who has experience as an 
accreditor or who has experience in regulating the delivery of services similar 
to child care or child placing services for the type of facility for which the 
organization is seeking approval to accredit; and 
(C) have at least one executive level staff with direct responsibility for 
operations with a level of expertise similar to that required for a child care 
administrator's license; 
(2) promulgate, publish, and require compliance with standards and inspection 
procedures for child-care facilities or child-placing agencies that meet or 
exceed the state's minimum requirements for child-care facilities or child-
placing agencies under the Human Resources Code, Title 2, Chapter 42, Subchapter 
C, with the exception of standards relating to the internal self-governance of a 
facility or agency and to the curriculum, teaching, or instruction of the 
facility or agency; 
(3) if planning to accredit child-care administrators under sec.725.1527 of this 
title, require accredited child-care administrators to meet qualifications that 
meet or exceed the state's qualifications for a child-care administrator under 
sec.43.004 of the Human Resources Code, with the exception of those 
qualifications relating to the internal self-governance of the child-care 
institution and to the curriculum, teaching, or instruction of the institution, 
but including the state's requirements for continuing education required under 
sec.43.009(a) of the Human Resources Code; 
(4) not have any person serve as a member of the governing body of the 
accreditation organization who has a proprietary or financial interest in a 
child care facility or child placing agency that is accredited by the 
accreditation organization. Proprietary interest is the ownership or possession 
or exclusive right in the entity. Organizations with governing board members who 
have non-proprietary or non-financial controlling interest in facilities or 
agencies accredited by the accreditation organization may be approved if the 
organization has policies in place which safeguard against conflict of interest 
between an accredited facility or accredited agency and its accreditor; 
(5) demonstrate a strong commitment to ensuring the provision of high-quality 
child-care services through its standards and inspection procedures, and through 
a policy of communicating with parents or guardians that meets or exceeds 
TDPRS's policy of communication with parents or guardians, including sharing the 
compliance history of the facility or agency with parents or guardians, 
requiring the facility or agency to post its certificate or letter of 
accreditation, and sharing any non-compliances related to violation of health 
and safety standards with parents or guardians; and 
(6) show evidence of adequate financial resources necessary to comply with 
paragraphs (1)- (3) and (5) of this section. 

sec.725.1505. Ongoing Obligations of Approved Accreditation Organization. 
To comply with the laws and rules governing the Alternative Accreditation 
Program, and if applicable, the Alternative Accreditation of Child-Care 
Administrators, the accrediting organization must: 
(1) furnish the Texas Department of Protective and Regulatory Services (TDPRS) 
with the written accreditation report and certificate or letter of accreditation 
of a facility or agency registering to operate under accreditation and must 
validate that information to TDPRS upon request; 
(2) if accrediting child-care administrators, furnish a copy each child-care 
administrator's certificate or letter of accreditation;
(3) furnish TDPRS with the results of the background and criminal history checks 
on: 
(A) a child-care administrator seeking accreditation under sec.43.003(c) of the 
Human Resources Code; 
(B) a person who registers with TDPRS to operate under accreditation or holds a 
certificate to operate under accreditation issued by TDPRS; 
(C) an operator of a child-care facility or child-placing agency accredited by 
the organization and seeking registration with TDPRS to operate under 
accreditation or issued TDPRS's certificate to operate under accreditation; and 
(D) an employee of or an applicant for employment by a child-care facility or 
child-placing agency accredited by the organization and seeking registration 
with TDPRS to operate under accreditation or issued TDPRS's certificate to 
operate under accreditation; 
(4) file the most recent inspection report for each facility and/or agency 
accredited by the organization 30 days before the date of TDPRS's renewal of the 
approval of the accreditation organization, in order to assist TDPRS in 
determining whether the accreditation organization is requiring compliance with 
standards and inspection procedures which meet or exceed the state's minimum 
requirements for child-care facilities or child- placing agencies;
(5) file with TDPRS any complaints that, despite the efforts made by the 
accreditation organization, the facility or agency has violated the standards of 
the accreditation organization and the violation creates an immediate threat to 
the health or safety of children attending or residing in the facility or 
agency; and 
(6) notify TDPRS of the revocation or withdrawal of the accreditation of a 
child-care facility or child-placing agency holding a certificate to operate 
under accreditation, or the revocation or withdrawal of the accreditation of a 
child-care administrator. The organization must notify TDPRS no later than the 
seventh day after the date on which the organization revokes or withdraws the 
accreditation. The organization may notify TDPRS by facsimile or by telephone as 
long as a letter of notification is sent by certified mail the same day.

sec.725.1506. Background and Criminal History Checks.
(a) An approved accreditation organization shall obtain and review the 
background information from the Texas Department of Protective and Regulatory 
Services' (TDPRS's) central registry of reported cases of abuse or neglect 
established under sec.261.002 of the Family Code and information from the 
Department of Public Safety established under sec.411.114 of the Government Code 
in order to review the general character and fitness of: 
(1) a child-care administrator seeking accreditation under sec.43.003(c) of the 
Human Resources Code; 
(2) a person who registers with TDPRS to operate under accreditation or holds a 
certificate to operate under accreditation issued by TDPRS; 
(3) an operator of a child-care facility or child-placing agency accredited by 
the organization and seeking registration with TDPRS to operate under 
accreditation or issued TDPRS's certificate to operate under accreditation; and 
(4) an employee of or an applicant for employment by a child-care facility or 
child-placing agency accredited by the organization and seeking registration 
with TDPRS to operate under accreditation or issued TDPRS's certificate to 
operate under accreditation. 
(b) An approved accreditation organization shall not accredit a child-care 
administrator if the results of the background or criminal history check 
conducted by the organization show that a person has been convicted of an 
offense under Title 5 or 6, or Chapter 43 of the Penal Code or has a final 
finding of abuse or neglect. 
(c) TDPRS shall revoke the organization's accreditation of a child-care 
administrator if the results of the background or criminal history check show 
that a person has been convicted of an offense under Title 5 or 6, or Chapter 43 
of the Penal Code or has a final finding of abuse or neglect, and the 
organization fails to deny, revoke, or withdraw the accreditation of the child-
care administrator. 

sec.725.1508.Renewal of Approval of Accreditation Organization. 
(a) Once every year upon receipt of a request for renewal of approval, the Texas 
Department of Protective and Regulatory Services (TDPRS) will review the 
accreditation organization's compliance with laws and rules governing the 
Alternative Accreditation Program, and if applicable, the Alternative 
Accreditation of Child-Care Administrators. 
(b) If the accreditation organization has maintained compliance with the laws 
and rules governing the Alternative Accreditation Program, and if applicable, 
the Alternative Accreditation of Child-Care Administrators, TDPRS will renew the 
accreditation organization's approval. 
(c) A renewed approval of an accreditation organization is valid for one year. 

sec.725.1519. Denial or Revocation of the Certificate.
(a) A registration or certificate to operate under accreditation may be denied, 
revoked, or not renewed based on the results of a background or criminal history 
check. 
(b) The Texas Department of Protective and Regulatory Services (TDPRS) shall 
deny a registration or renewal of a certificate to operate under accreditation 
if the results of the background or criminal history check conducted by TDPRS 
show that a person has been convicted of an offense under Title 5 or 6, or 
Chapter 43 of the Penal Code or has a final finding of abuse or neglect.
(c) TDPRS shall revoke a certificate to operate under accreditation if the 
results of the background or criminal history check conducted by TDPRS show that 
a person has been convicted of an offense under Title 5 or 6, or Chapter 43 of 
the Penal Code or has a final finding of abuse or neglect, and the facility or 
agency fails to remove that person from the facility or agency.
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 5, 1998.
TRD-9807292
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: June 1, 1998
Proposal publication date: December 19, 1997
For further information, please call: (512) 438-3765

40 TAC sec.sec.725.1527-725.1533
The Texas Department of Protective and Regulatory Services (TDPRS) adopts new 
sec.sec.725.1527-725.1533, in its General Licensing Procedures. New 
sec.sec.725.1528, 725.1531, 725.1532, and 725.1533 are adopted with changes to 
the proposed text published in the December 19, 1997, issue of the Texas 
Register (22 TexReg 12470). New sec.sec.725.1527, 725.1529, and 725.1530 are 
adopted without changes to the proposed text and will not be republished. The 
new sections are adopted in new Subchapter P, Alternative Accreditation. The 
purpose of the changes to the proposal is to clarify the rules and to allow 
flexibility to program applicants and participants.
The justification for the proposal is to create an alternative accreditation 
program as required by the 75th Legislature. 
The new sections will function by ensuring an alternative to licensing as 
required by the 75th Legislature. Administrators who choose to participate in 
the alternative accreditation program will pay no fees to TDPRS, while they are 
required to pay a bi-annual $50 fee under licensing. 
During the public comment period, TDPRS received comments from an individual. A 
summary of the comments and TDPRS's responses follow: 
Comment regarding the qualifications for an accreditation organization for child 
care administrators (sec.725.1528 (1)): The commenter objected to the 
requirement that an accreditation organization for child care administrators, in 
order to qualify for approval by TDPRS, have experience in the child-care and/or 
child-placing industry and a credible background in accreditation. The commenter 
stated that these requirements exceed the qualifications mandated by the 
statute. The commenter is concerned that newly formed organizations would not 
qualify under these rules. The commenter proposed that an accreditation 
organization, in order to qualify for approval by TDPRS, be established for the 
purposes of accrediting child-care and/or child-placing organizations, and has 
qualified staff. 
Response: Section 725.1528 (1) is amended to allow an accreditation organization 
for child care administrators to gain approval from TDPRS without organizational 
experience if the organization employs at least one executive level staff who: 
(1) has direct responsibility for the organization's operations; and (2) has 
significant supervisory or administrative experience in the child care industry 
for the type of facility the organization is seeking approval to accredit. The 
rule section also allows an accreditation organization for child care 
administrators without a credible background in accreditation to gain approval 
from TDPRS if the organization employs at least one executive level staff who: 
(1) has direct responsibility for the organization's operations; and (2) has 
experience as an accreditor or experience in regulating the delivery of services 
similar to child care or child placing services for the type of facility the 
organization is seeking approval to accredit. 
Comment regarding the qualifications for an accreditation organization 
(sec.725.1528 (3)): The commenter objected to the rules prohibiting any member 
of an accreditation organization's governing board from having "control over the 
operation" of a child-care facility or child-placing agency accredited by the 
organization. The commenter stated that TDPRS exceeded the statute, which only 
prohibits any members of the accreditation organization's governing board from 
having proprietary interest in of a child- care facility or child-placing agency 
accredited by the organization. 
Response: Section 725.1528 (3) has been clarified based on comments received to 
allow governing board members who have non-proprietary or non-financial 
controlling interest in facilities or agencies accredited by the accreditation 
organization to be approved for accreditation as long as the organization has 
policies that safeguard against any conflict of interest between an accredited 
facility or agency and its accreditor. 
Comment regarding the notification of revocation or withdrawal of accreditation 
(sec.725.1531 (3)): The commenter objected to the requirement that the 
accreditation organization for child-care administrators notify TDPRS no later 
than the seventh day after the date on which the organization revokes or 
withdraws the accreditation of a child-care administrator and proposed that 
TDPRS note the method of notification and accept a 30- day notification period.
Response: Section 725.1531 (3) was written to be consistent with sec.42.108 of 
the Human Resources Code, which requires notification of revocation or 
withdrawal in seven days to TDPRS by the accreditation organization. TDPRS 
agrees with the comment that the regulations should address the accepted methods 
of notification. TDPRS will accept notification by facsimile or telephone as 
long as a letter of notification is sent by certified mail the same day. Section 
725.1531 (3) is amended to reflect that change. These rules and the underlying 
legislation are intended to prevent a revoked child-care administrator from 
operating for any longer than necessary without either a valid accreditation or 
a license issued by TDPRS. 
Comment regarding background and criminal histories (sec.725.1532 (b) and (c)): 
The commenter objected to the prohibition of child-care administrators who have 
a "confirmed history of abuse or neglect" from working and proposed that only 
those child- care administrators who have been "convicted of abuse or neglect" 
be prevented from working in accredited facilities or agencies. The commenter 
also proposed an internal administrative appeal process prior to the formal 
appeal process for addressing criminal and background check results and that 
TDPRS distinguish between crimes of which a person can have been convicted and 
continue working during appeal and those crimes of which a person convicted 
could not work during appeal. 
Response: Under sec.42.105 of the Human Resources Code, the Legislature has 
mandated that an approved accreditation organization and TDPRS review the 
general character and fitness of child-care administrators seeking accreditation 
using both convictions of criminal activity and TDPRS's central registry of 
reported cases of child abuse and neglect. This regulation implements that 
requirement. Had the Legislature intended for an approved accreditation 
organization and TDPRS only to check convictions, the approved accreditation 
organization and TDPRS would not have been directed to check its central 
registry. The wording in sec.725.1532 (b) and (c) has been changed from 
"confirmed history of abuse or neglect" to "final finding of abuse or neglect" 
for purposes of clarification. Child-care administrators and other individuals 
and organizations do have due process hearings available to them under 
Subchapters OO, PP, and YY of Chapter 725 of the Texas Administrative Code. 
TDPRS believes that the procedures for administrative review will serve the 
purpose of an internal review. These processes are designed to meet the 
requirements of Texas State law and afford adequate due process consistent with 
the protection of children in care. 
Comment regarding the renewal of an accreditation organization's approval 
(sec.725.1533): The commenter sought clarification about the procedure for the 
renewal of TDPRS's approval of an accreditation organization for child-care 
administrators, specifically whether the renewal will be automatic or will 
require an application for renewal. 
Response: TDPRS agrees that the rule needs to address how the renewal process in 
sec.725.1533 is begun and TDPRS has amended the rule to require a request from 
the accreditation organization for renewal of TDPRS's approval. 
The new sections are adopted under the Human Resources Code (HRC), Title 2, 
Chapter 42, which authorizes the department to administer general child-placing 
and child care licensing programs. 
The new sections implement the HRC, Chapter 43, sec.43.003(c). This section 
provides for the procedures for approval of an accreditation organization 
exclusively for child-care administrators and renewal of that approval. 

sec.725.1528. Accreditation Organization for Child-Care Administrators. 
To qualify for approval by the Texas Department of Protective and Regulatory 
Services under sec.43.003(c) of the Human Resources Code and sec.725.1527 of 
this title (relating to the Accreditation of Child-Care Administrators), an 
accreditation organization must: 
(1) be a recognized private organization that meets the qualifications set out 
in subparagraphs (A)-(C) of this paragraph: 
(A) have experience in the child care and/or child-placing industry or have at 
least one executive level staff with direct responsibility for operations, who 
has significant supervisory or administrative experience in the child care 
industry for the type of facility for which the organization is seeking approval 
to accredit; 
(B) have a credible background in accreditation or have at least one executive 
level staff with direct responsibility for operations, who has experience as an 
accreditor or who has experience in regulating the delivery of services similar 
to child care or child placing services for the type of facility for which the 
organization is seeking approval to accredit; and 
(C) have at least one executive level staff with direct responsibility for 
operations with a level of expertise similar to that required for a child care 
administrator's license; 
(2) require accredited child-care administrators to meet qualifications that 
meet or exceed the state's qualifications for a child-care administrator under 
sec.43.004 of the Human Resources Code, with the exception of those 
qualifications relating to the internal self-governance of the child-care 
institution and to the curriculum, teaching, or instruction of the institution, 
but including the state's requirements for continuing education required under 
sec.43.009(a) of the Human Resources Code; 
(3) not have any person serve as a member of the governing body of the 
accreditation organization who has a proprietary or financial interest in a 
child care facility or child placing agency that is accredited by the 
accreditation organization. Proprietary interest is the ownership or possession 
or exclusive right in the entity. Organizations with governing board members who 
have non-proprietary or non-financial controlling interest in facilities or 
agencies accredited by the accreditation organization may be approved if the 
organization has policies in place which safeguard against conflict of interest 
between an accredited facility or accredited agency and its accreditor; 
(4) demonstrate a strong commitment to ensuring the provision of high-quality 
child-care services; and 
(5) show evidence of adequate financial resources necessary to comply with 
paragraphs (1), (2), and (4) of this section.

sec.725.1531.Ongoing Obligations of Approved Accreditation Organization for 
Child-Care Administrators.
In order to comply with the laws and rules governing the Alternative 
Accreditation of Child-Care Administrators, the accrediting organization must:
(1) furnish the Texas Department of Protective and Regulatory Services (TDPRS) 
with the certificate or letter of accreditation of a child-care administrator; 
(2) furnish TDPRS with the results of the background and criminal history checks 
on a child- care administrator seeking accreditation under sec.43.003(c) of the 
Human Resources Code; and 
(3) notify TDPRS of the revocation or withdrawal of the accreditation of a 
child-care administrator. The organization must notify TDPRS not later than the 
seventh day after the date on which the organization revokes or withdraws the 
accreditation. The organization may notify TDPRS by facsimile or by telephone as 
long as a letter of notification is sent by certified mail the same day. 

sec.725.1532.Background and Criminal History Checks for Accredited Child-Care 
Administrators. 
(a) An approved accreditation organization shall obtain and review background 
information from the Texas Department of Protective and Regulatory Services' 
(TDPRS's) central registry of reported cases of abuse or neglect established 
under sec.261.002 of the Family Code and information from the Department of 
Public Safety established under sec.411.114 of the Government Code in order to 
review the general character and fitness of a child-care administrator seeking 
accreditation under sec.43.003(c) of the Human Resources Code. 
(b) An approved accreditation organization shall not accredit a child-care 
administrator if the results of the background or criminal history check 
conducted by the organization show that a person has been convicted of an 
offense under Title 5 or 6, or Chapter 43 of the Penal Code or has a final 
finding of abuse or neglect. 
(c) TDPRS shall revoke the organization's accreditation of a child-care 
administrator if the results of the background or criminal history check show 
that a person has been convicted of an offense under Title 5 or 6, or Chapter 43 
of the Penal Code or has a final finding of abuse or neglect, and the 
organization fails to deny, revoke, or withdraw the accreditation of the child-
care administrator. 

sec.725.1533.Renewal of Approval of Accreditation Organization. 
(a) Once every year upon receipt of a request for renewal of approval, the Texas 
Department of Protective and Regulatory Services (TDPRS) will review the 
accreditation organization's compliance with laws and rules governing the 
Alternative Accreditation of Child-Care Administrators. 
(b) If the accreditation organization has maintained compliance with the laws 
and rules governing the Alternative Accreditation of Child-Care Administrators, 
TDPRS will renew the accreditation organization's approval.
(c) A renewed approval granted by TDPRS under this section applies only to the 
accreditation of child-care administrators. 
(d) A renewed approval of an accreditation organization is valid for one year. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority. 
Filed with the Office of the Secretary of State on May 5, 1998.
TRD-9807293
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Effective date: June 1, 1998
Proposal publication date: December 19, 1997
For further information, please call: (512) 438-3765