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

TITLE 13. CULTURAL RESOURCES
PART II. Texas Historical Commission
CHAPTER 24. Restricted Cultural Resource Information
13 TAC sec.sec.24.1, 24.3, 24.5, 24.7, 24.9, 24.11, 24.13, 24.15, 24.17, 24.19, 
24.21, 24.23
The Texas Historical Commission proposes new sec.sec.24.1, 24.3, 24.5, 24.7, 
24.9, 24.11, 24.13, 24.15, 24.17, 24.19, 24.21, and 24.23 concerning public 
access to cultural resource information contained within our libraries, files, 
and databases. To protect fragile properties, particularly those subject to 
looting and vandalism, the commission will withhold information about the 
location and character of such properties from the general public. The chapter 
is proposed to define public and restricted cultural resource information, 
establish criteria for access to restricted data, and outline the registration 
procedures required for access to and use of the information held by the 
commission in its libraries, files, documents, maps, and contained in the Texas 
Historic Sites Atlas (THSA) database.
Curtis Tunnell, Executive Director, has determined that for the first five-year 
period the sections as proposed are in effect, there may be some limited fiscal 
implications for state or local governments as a result of enforcing or 
administering this section of rules. These costs (a subscription fee) would only 
be incurred by those agencies that seek and are qualified for access to 
restricted cultural resource information contained within the THSA database. 
Mr. Tunnell also anticipates that the public will benefit from information 
access limitations intended to protect fragile cultural resources from trespass 
or destruction. These rules establish a procedure that the commission must 
follow in order to grant access to the restricted cultural resource data held by 
the commission. There may some limited costs for some members of the public as a 
result of enforcing or administering this section of rules in the form of a 
subscription fee for those individuals that desire and are qualified for access 
to restricted information contained within the THSA database. 
Comments on the proposal may be submitted to Dr. Daniel Julien, Director of the 
THSA Program, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711-
2276. 
The rules are proposed under Section 442.005(q) of the Texas Government Code and 
Section 191.052 of the Texas Natural Resources Code, which authorizes the Texas 
Historical Commission to promulgate rules for its programs. These rules 
implement Section 442.007(f) of the Texas Government Code and Section 191.004(a-
c) of the Texas Natural Resources Code. 

sec.24.1. Object. 
The Texas Historical Commission, hereafter referred to as the commission, is 
specifically empowered to adopt reasonable rules and regulations concerning 
access to Restricted Cultural Resource Information (RCRI) contained within the 
Texas Historic Sites Atlas (THSA) database, and the libraries, documents, maps, 
and files of the commission. Implementation of registration procedures for 
public access to and use of this restricted information is the objective of this 
chapter. 

sec.24.3. Scope. 
The intent of these rules is to restrict access to specific cultural resource 
data to those individuals that have a legitimate scientific or legal interest in 
obtaining and using that information. The intent is not to limit the public's 
use of all information that the commission has within its libraries, files, 
documents, and the THSA database; however, as provided for in Section 442.007(f) 
of the Texas Government Code, and Section 191.004(a-c) of the Texas Natural 
Resources Code, the commission can determine what cultural resource information 
is sensitive and what information needs to be restricted due to potential 
dangers to those resources. The cultural resources that the commission considers 
to be at risk include archeological sites, shipwrecks, certain historic 
structures and engineering features. Public disclosure of any information 
relating to the location or character of these resources would increase their 
risk of harm, theft or destruction. Therefore, this information is defined as 
restricted and is not subject to public disclosure under state law. Restrictions 
on who can obtain data and how the data are used is within the legal authority 
of the commission, and can be defined through the rule-making authority of the 
commission. 

sec.24.5. Compliance with Rules and Regulations. 
If a registered user of RCRI fails to comply with any of the rules and 
regulations of the commission, or any of the terms of an RCRI Access Agreement, 
or fails to properly conduct database searches, or fails to act in the best 
interest of the state, the commission may immediately revoke the user's access 
and notify the user of such cancellation by Internet e-mail or by registered 
letter, mailed to the last address furnished to the commission by the user. Upon 
cancellation of access, the user forfeits all rights to the restricted data. 
Access that has been canceled could be reinstated through the process of re-
application as provided for in the application process defined in sec.24.19 of 
this title (relating to Restricted Information Application Submission and Review 
Procedures). 

sec.24.7. Definitions. 
The following words and terms, when used in this chapter, shall have the 
following meanings, unless the context clearly indicates otherwise. 
(1) Access account - Confidential transaction record verifying an individual's 
identity and authority to access the restricted information within the THSA 
database. 
(2) Access agreement - A contract signed or otherwise accepted by all users of 
RCRI, which states that they agree to comply with the regulations governing the 
use of RCRI, including the restricted data contained within the THSA database. 
(3) Access committee - The RCRI Access Committee. A standing committee composed 
of the Director of the Archeology Division, the Director of the History Programs 
Division, the State Archeologist, and the Director of the Texas Archeological 
Research Laboratory of the University of Texas at Austin, or their designees, 
which has the authority to determine an applicant's qualification for access to 
restricted information, and the ability to grant or deny such access. 
(4) Applicant - An individual who submits an application request for access to 
RCRI data sources, including the THSA database. 
(5) Application form - The completed information packet filed by an applicant 
being considered for access privileges to RCRI. 
(6) Cultural resource information - Data pertaining to cultural resources, 
including but not limited to site records, reports, location information, notes, 
photographs, and maps.
(7) Atlas - The Texas Historic Sites Atlas (THSA). 
(8) Cultural resource - A site or place where there is physical evidence of past 
human activities, such as structures, artifacts or alterations of the natural 
environment, and which is fifty or more years old. 
(9) Curriculum vitae - Brief account of the applicant's career and 
qualifications. 
(10) Database - Information and data contained within a computer, file, or 
document. 
(11) Legitimate scientific or legal interest - An interest based on specific 
research goals associated with professional archeological, historical, or 
architectural research as defined in Chapter 191 of the Texas Natural Resources 
Code, or legal jurisdiction directly related to ownership of sites classified as 
restricted under this title. 
(12) Political subdivision - A political subdivision of the State, as defined in 
Chapter 191 of the Texas Natural Resources Code.
(13) Site - A cultural resource location containing evidence of either a 
prehistoric and/or historic occupation, or activity, building, or structure, 
whether standing, in ruin, or vanished, where the location itself maintains 
historical or archeological value regardless of the value of any existing 
structure.
(14) Site location - Information concerning the location, placement, or locality 
of a cultural resource. 
(15) Site records - All data and information relating to the character, 
condition, and location of any archeological site or other cultural resource, 
and all data and information pertinent to collections of material remains. Site 
records include, but are not limited to, photographs, maps, notes, drawings, 
site data forms, documents, sound tapes, and computerized data.
(16) State agency - A department, commission, board, office, or other agency, as 
defined in Chapter 191 of the Texas Natural Resources Code.
(17) Steward - A member of the Texas Archeological Stewardship Network.
(18) Texas Historic Sites Atlas - The computer database documenting historical 
and archeological sites and properties in the state of Texas, as well as the 
computer database server on which this information resides and the system that 
provides access to this database through the Internet.
(19) User -An individual who accesses and uses information contained within the 
THSA database or within the libraries, files, documents, and maps held by the 
commission.

sec.24.9. The Texas Historic Sites Atlas. 
The THSA is an evolving database of cultural resource information administered 
by the commission. This database is accessible to the public through the World 
Wide Web. The THSA contains information on archeological sites, historic 
structures, engineering features, and industrial sites, as well as digital maps 
of these site locations. 

sec.24.11. Public Information. 
As specified under the Texas Open Records Act, all information collected and 
maintained by the commission that is not specifically exempted from release by 
either a specific exception to the act (Texas Government Code VTCA sec.552.101), 
or by previous statute, constitutional amendment, or rule, is considered public. 
The vast majority of the data held by the commission is open to the public and 
is accessible through the commission's libraries, files, and the THSA web site 
without open records requests. 

sec.24.13. Restricted Information. 
The following categories of information are hereby defined as Restricted 
Cultural Resource Information (RCRI). 
(1) All archeological site location and site record information that contains 
longitude and latitude, Universal Transverse Mercator coordinates, or other high 
resolution geographical map or photographic plottings data, or descriptions that 
would allow an individual to determine the location of an archeological site. 
(2) The address or site location of historic structures or other non-
archeological cultural resources nominated for or listed in the National 
Register of Historic Places or registered as State Archeological Landmarks, if 
the owner of the property has specifically requested that such information not 
be distributed to the general public. 
(3) The site location of cemeteries determined by the commission to be at risk 
of harm. 

sec.24.15. Access to both Public and Restricted Cultural Resource Information. 
All persons desiring to view or use RCRI compiled and maintained by the 
commission, in its libraries, files, and maps, or within the THSA database must 
be approved through the commission's application process as defined in sec.24.17 
and sec.24.19 of this title (relating to Restricted Information Access Criteria 
and Application Submission and Review Procedures), and agree to abide by the 
rules of usage established by an RCRI Access Agreement. No access agreement 
document is needed for persons wishing to access public information in the THSA 
database or the libraries or files of the commission if restricted information 
is not contained within those materials. Persons wishing to view or use the RCRI 
data must submit a written application supplied by the commission, and sign an 
RCRI Access Agreement if approved for RCRI access. 

sec.24.17. Criteria for Access to Restricted Information.
(a) Qualified applicants meeting one or more of the following criteria may be 
granted access by the THSA Program Director: 
(1) Meet the Secretary of Interior's Professional Qualifications Standards (36 
CFR Part 61) for Archeology. 
(2) Meet the definition of professional archeologist, or principal investigator 
as defined by Section 26.5 of this title (relating to Practice and Procedure). 
(3) Be a member in good standing of the Texas Archeological Stewardship Network. 
(b) Applications from persons not meeting the criteria set forth in sec.24.17(a) 
of this title (relating to Restricted Cultural Resource Information Access 
Qualifications) must have a clear and legitimate scientific or legal interest in 
being granted access to RCRI. Their applications will be reviewed by the access 
committee, and access will be granted or denied by the committee as specified in 
sec.24.19 of this title (relating to Restricted Information Application 
Submission and Review Procedures).
(c) If an applicant is denied access to RCRI, the applicant may appeal that 
decision before the commission at one of its regularly scheduled public 
meetings. Appeals must be submitted in writing to the commission at least 30 
days prior to a scheduled meeting of the commission.

sec.24.19. Restricted Information Application Submission and Review Procedures.
(a) Application forms. All persons requesting access to RCRI must complete and 
submit the application form provided by the commission. This application form 
must indicate the type of information to which access is desired, the nature of 
the proposed research and any special user requirements during access, the name 
of the person desiring access, when access is needed, and for how long. 
(b) Curriculum vitae. To prove his or her credentials for access, an applicant 
must also submit a current curriculum vitae to the commission, if such a 
document is not already on file with the commission. 
(c) Initial review by the THSA Program Director. The THSA Program Director 
reviews all applications and vitae for completeness, and will notify the 
applicant of any additional information required. 
(d) Consideration of qualified application. When all required application 
information has been received and reviewed, the THSA Program Director will 
either rule on access relative to criteria set forth in sec.24.17(a) of this 
title (relating to Restricted Cultural Resource Information Access 
Qualifications), or forward the application to the access committee. If the 
applicant is approved for RCRI access under sec.24.17(a) of this title, the THSA 
Program Director will notify the applicant of this approval within 10 working 
days. The access committee will review all applicants for qualification under 
sec.24.17(b) of this title, and the THSA Program Director will notify the 
applicant of the committee's decision. 
(e) Denial of application. If an application is denied, the THSA Program 
Director will notify the applicant in writing of the reasons for denial. Any 
appeals of these decisions must be made before the commission at one of its 
regularly scheduled public meetings.
(f) Access agreement. Once any application has been approved by either the THSA 
Program Director, access committee, or commission, an access agreement will be 
forwarded to the applicant. The applicant must then sign the access agreement 
and return it to the commission. Once received, the THSA Program Director will 
register the applicant as an RCRI user, and a written notice documenting 
registration will be forwarded to the registered RCRI user. When appropriate, 
the commission will also supply the applicant with a THSA Access Account, which 
will enable the applicant to access the restricted portion of the THSA database. 
A copy of the access agreement document will be kept on file at the Texas 
Historical Commission. 
(g) The commission may conduct an investigation to verify any information 
submitted on an application. 
(h) False information. If the access committee determines that an applicant 
provided false information on an application, the committee will take the 
following actions. 
(1) Recommend denial of the application. 
(2) Notify the applicant of the information considered to be false and give the 
applicant a reasonable period of time, not to exceed 30 days, to respond. 
(3) If, upon examination of the applicant's response, or failure to respond, the 
access committee determines that false information was knowingly provided on the 
application, the access committee may recommend to the commission that the 
applicant be denied access to RCRI for a period not to exceed two years. 
(4) The commission may consider and act on this recommendation, upon due notice 
to the applicant, at any regular or called meeting of the commission. 

sec.24.21. Memoranda of Understanding and/or Agreement for RCRI Access. 
The commission may enter into memoranda of understanding or agreement with state 
or federal agencies, political subdivisions of the state, private institutions, 
and/or individuals for the purpose of establishing RCRI access arrangements. 

sec.24.23. Access Committee Procedures.
(a) Access committee. The affirmative vote of a simple majority of the committee 
members is necessary for any action to be taken. No absence in the membership of 
the access committee shall impair the ability of the committee to exercise all 
rights and perform all duties. 
(b) Committee meeting schedule. Meetings of the committee are held at the call 
of the THSA Program Director, or whenever requested by one of the members. 
(c) Conflict of interest provision for committee members. Any committee member 
who has, will have, or later acquires an interest, direct or indirect, in any 
transaction involving an application scheduled to be reviewed by the committee, 
or approved by the committee, shall immediately disclose the nature and extent 
of such interest in writing to the THSA Program Director as soon as he or she 
has knowledge of such actual or prospective interest. Upon such disclosure, this 
member shall not participate in any deliberations or actions by the committee 
that directly or indirectly affects that transaction or interest. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 20, 1998.
TRD-9813232
Curtis Tunnell
Executive Director
Texas Historical Commission
Proposed date of adoption: October 30, 1998
For further information, please call: (512) 463-5711

PART III. Texas Commission on the Arts
CHAPTER 31.Agency Procedures
13 TAC sec.31.10
The Texas Commission on the Arts proposes to adopt by reference an amendment to 
sec.31.10, concerning the application forms and instructions for the Financial 
Assistance Application Form. The purpose of this amendment is to be consistent 
with changes to programs and services of the commission as outlined in the Texas 
Arts Plan as amended September 1998.
Fred Snell, Director of Finance and Administration, Texas Commission on the 
Arts, has determined that for the first five-year period the section is in 
effect there will be no fiscal implications for state or local government as a 
result of enforcing the section. 
Mr. Snell also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be the ability to utilize federal and state financial assistance 
funds in a more effective manner, thereby allowing more Texas organizations, 
communities, and citizens to participate in agency programs. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the section as proposed. 
Comments on the proposal may be submitted to Ricardo Hernandez, Assistant 
Director/Programs and Public Partnerships, Texas Commission on the Arts, P.O. 
Box 13406, Austin, Texas 78711-3406. Comments will be accepted for 30 days after 
publication in the Texas Register.
The amendment is proposed under the Government Code, sec.444.009, which provides 
the Texas Commission on the Arts with the authority to make rules and 
regulations for its government and that of its officers and committees.
No other statute, code, or article is affected by this proposal.

sec.31.10.Financial Assistance Application Form.
The commission adopts by reference application form and instructions for the 
Financial Assistance Application Form as outlined in the Texas Arts Plan as 
amended September <nl>1998<ol> [1997]. This document is published by and 
available from the Texas Commission on the Arts, P.O. Box 13406, Austin, Texas 
78711. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 24, 1998.
TRD-9813432
John Paul Batiste
Executive Director
Texas Commission on the Arts
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 463-5535

CHAPTER 35.Texas Arts Plan
The Texas Commission on the Arts proposes to adopt by reference the repeal of 
sec.35.1 and new sec.35.1, concerning the Texas Arts Plan, which outlines the 
activities of the Commission. Due to several changes being made to the Texas 
Arts State Plan, the section is being repealed and replaced.
Fred Snell, Director of Finance and Administration, Texas Commission on the 
Arts, has determined that for the first five-year period the section is in 
effect there will be no fiscal implications for state or local government as a 
result of enforcing the section. 
Mr. Snell also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be the ability to utilize federal and state financial assistance 
funds in a more effective manner, thereby allowing more Texas organizations, 
communities, and citizens to participate in agency programs. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the section as proposed. 
Comments on the proposal may be submitted to Ricardo Hernandez, Assistant 
Director/Programs and Public Partnerships, Texas Commission on the Arts, P.O. 
Box 13406, Austin, Texas 78711-3406. Comments will be accepted for 30 days after 
publication in the Texas Register. 

13 TAC sec.35.1
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Commission 
on the Arts or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Government Code, sec.444.009, which provides 
the Texas Commission on the Arts with the authority to make rules and 
regulations for its government and that of its officers and committees. 
No other statute, code, or article is affected by this proposal.

sec.35.1.Texas Arts Plan.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 24, 1998.
TRD-9813433
John Paul Batiste
Executive Director
Texas Commission on the Arts
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 463-5535

The new section is proposed under the Government Code, sec.444.009, which 
provides the Texas Commission on the Arts with the authority to make rules and 
regulations for its government and that of its officers and committees. 
No other statute, code, or article is affected by this proposal. 

sec.35.1.Texas Arts Plan.
The commission adopts by reference the Texas Arts Plan effective September 1998. 
This document is published by and available from the Texas Commission on the 
Arts, P.O. Box 13406, Austin, Texas 78711. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 24, 1998.
TRD-9813434
John Paul Batiste
Executive Director
Texas Commission on the Arts
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 463-5535

CHAPTER 37.Application Forms and Instructions for Financial Assistance
13 TAC sec.sec.37.22-37.24, 37.26
The Texas Commission on the Arts proposes to adopt by reference amendments to 
sec.sec.37.22-37.24, and 37.26, concerning the application forms and 
instructions for the Arts in Education Program - Sponsors, the Texas Touring 
Arts Program - Company/Artist, and Texas Touring Arts Program - Sponsors. The 
purpose of these amendments is to be consistent with changes to programs and 
services of the commission as outlined in the Texas Arts Plan as amended 
September 1998. 
Fred Snell, Director of Finance and Administration, Texas Commission on the 
Arts, has determined that for the first five-year period the sections are in 
effect there will be no fiscal implications for state or local government as a 
result of enforcing the sections. 
Mr. Snell also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be the ability to utilize federal and state financial 
assistance funds in a more effective manner, thereby allowing more Texas 
organizations, communities, and citizens to participate in agency programs. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the sections as proposed. 
Comments on the proposal may be submitted to Ricardo Hernandez, Assistant 
Director/Programs and Public Partnerships, Texas Commission on the Arts, P.O. 
Box 13406, Austin, Texas 78711-3406. Comments will be accepted for 30 days after 
publication in the Texas Register.
The amendments are proposed under the Government Code, sec.444.009, which 
provides the Texas Commission on the Arts with the authority to make rules and 
regulations for its government and that of its officers and committees.
No other statute, code, or article is affected by this proposal.

sec.37.22.Application Form and Instructions for Artist-in-Education Program-
Artist.
The commission adopts by reference the application form and instructions for the 
Artist-in-Education Program-Artist as outlined in the Texas Arts Plan <nl> 
amended to be effective September 1998<ol>. This document is published by and 
available from the Texas Commission on the Arts, P.O. Box 13406, [Capitol 
Station,] Austin, Texas 78711.

sec.37.23.Application Form and Instructions for Arts in Education Program - 
Sponsors.
The commission adopts by reference application form and instructions for Arts in 
Education Program--Sponsors as outlined in the Texas Arts Plan as amended 
September <nl>1998<ol> [1997]. This document is published by and available from 
the Texas Commission on the Arts, P.O. Box 13406, Austin, Texas 78711. 

sec.37.24.Application Form and Instructions for Texas Touring Arts Program--
Company/Artist.
The commission adopts by reference the application form and instructions for the 
Texas Touring Arts Program--Company/Artist as outlined in the Addendum to the 
Texas Arts Plan, amended to be effective September <nl>1998<ol> [1997]. This 
document is published by and available from the Texas Commission on the Arts, 
P.O. Box 13406, Austin, Texas 78711.

sec.37.26.Application Form and Instructions for Texas Touring Arts Program--
Sponsors.
The commission adopts by reference application form and instructions for the 
Texas Touring Arts Program--Sponsors as outlined in the Texas Arts Plan as 
amended September <nl>1998<ol> [1997]. This document is published by and 
available from the Texas Commission on the Arts, P.O. Box 13406, Austin, Texas 
78711. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 24, 1998.
TRD-9813431
John Paul Batiste
Executive Director
Texas Commission on the Arts
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 463-5535

TITLE 16. ECONOMIC REGULATION
PART II. Public Utility Commission of Texas
CHAPTER 23. Substantive Rules
SUBCHAPTER H. Telephone
16 TAC sec.23.106
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Public Utility 
Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The Public Utility Commission of Texas (PUC) proposes the repeal of sec.23.106 
relating to Selection of Telecommunications Utilities. Project Number 17709 has 
been assigned to this proceeding. The Appropriations Act of 1997, HB 1, Article 
IX, Section 167 (Section 167) requires that each state agency review and 
consider for readoption each rule adopted by that agency pursuant to the 
Government Code, Chapter 2001 (Administrative Procedure Act). Such reviews shall 
include, at a minimum, an assessment by the agency as to whether the reason for 
adopting or readopting the rule continues to exist. The PUC held three workshops 
to conduct a preliminary review of its rules. As a result of these workshops, 
the PUC is reorganizing its current substantive rules located in 16 Texas 
Administrative Code (TAC) Chapter 23 to (1) satisfy the requirements of Section 
167; (2) repeal rules no longer needed; (3) update existing rules to reflect 
changes in the industries regulated by the commission; (4) do clean-up 
amendments made necessary by changes in law and commission organizational 
structure and practices; (5) reorganize rules into new chapters to facilitate 
future amendments and provide room for expansion; and (6) reorganize the rules 
according to the industry to which they apply. As a result of this 
reorganization, sec.23.106 will be duplicative of proposed new sec.26.130 of 
this title (relating to Selection of Telecommunications Utilities) in Chapter 26 
(Substantive Rules Applicable to Telecommunications Service Providers). 
Mr. Eric White, assistant general counsel, Office of Regulatory Affairs, has 
determined that for each year of the first five-year period the repeal is in 
effect there will be no fiscal implications for state or local government as a 
result of enforcing or administering the repeal. 
Mr. White has determined that for each year of the first five years the repeal 
is in effect, the public benefit anticipated as a result of the repeal will be 
the elimination of a duplicative rule. There will be no effect on small 
businesses as a result of repealing this section. There is no anticipated 
economic cost to persons as a result of repealing this section. 
Mr. White has also determined that for each year of the first five years the 
repeal is in effect there will be no impact on employment in the geographic area 
affected by the repeal of this section. 
Comments on the proposed repeal (16 copies) may be submitted to the Filing 
Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, PO Box 
13326, Austin, Texas 78711-3326, within 30 days after publication. All comments 
should refer to Project Number 17709, repeal of sec.23.106. 
This repeal is proposed under the Public Utility Regulatory Act, Texas Utilities 
Code Annotated sec.14.002 (Vernon 1998) (PURA), which provides the Public 
Utility Commission with the authority to make and enforce rules reasonably 
required in the exercise of its powers and jurisdiction. 
Cross Reference to Statutes: Public Utility Regulatory Act sec.14.002.
sec.23.106. Selection of Telecommunications Utilities. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 20, 1998.
TRD-9813268
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 936-7308

16 TAC sec.23.107
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Public Utility 
Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The Public Utility Commission of Texas (PUC) proposes the repeal of sec.23.107 
relating to Educational Percentage Discount Rates (E-Rates). Project Number 
17709 has been assigned to this proceeding. The Appropriations Act of 1997, HB 
1, Article IX, Section 167 (Section 167) requires that each state agency review 
and consider for readoption each rule adopted by that agency pursuant to the 
Government Code, Chapter 2001 (Administrative Procedure Act). Such reviews shall 
include, at a minimum, an assessment by the agency as to whether the reason for 
adopting or readopting the rule continues to exist. The PUC held three workshops 
to conduct a preliminary review of its rules. As a result of these workshops, 
the PUC is reorganizing its current substantive rules located in 16 Texas 
Administrative Code (TAC) Chapter 23 to (1) satisfy the requirements of Section 
167; (2) repeal rules no longer needed; (3) update existing rules to reflect 
changes in the industries regulated by the commission; (4) do clean-up 
amendments made necessary by changes in law and commission organizational 
structure and practices; (5) reorganize rules into new chapters to facilitate 
future amendments and provide room for expansion; and (6) reorganize the rules 
according to the industry to which they apply. As a result of this 
reorganization, sec.23.107 will be duplicative of proposed new sec.26.216 of 
this title (relating to Educational Percentage Discounts Rates (E-Rates)) in 
Chapter 26 (Substantive Rules Applicable to Telecommunications Service 
Providers). 
Ms. Janis Ervin, senior utilities analyst, Telecommunications Industry Analysis 
Division, has determined that for each year of the first five-year period the 
repeal is in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the repeal. Ms. Ervin has 
determined that for each year of the first five years the repeal is in effect, 
the public benefit anticipated as a result of the repeal will be the elimination 
of a duplicative rule. There will be no effect on small businesses as a result 
of repealing this section. There is no anticipated economic cost to persons as a 
result of repealing this section. 
Ms. Ervin has also determined that for each year of the first five years the 
repeal is in effect there will be no impact on employment in the geographic area 
affected by the repeal of this section. 
Comments on the proposed repeal (16 copies) may be submitted to the Filing 
Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, PO Box 
13326, Austin, Texas 78711-3326, within 30 days after publication. All comments 
should refer to Project Number 17709, repeal of sec.23.107. 
This repeal is proposed under the Public Utility Regulatory Act, Texas Utilities 
Code Annotated sec.14.002 (Vernon 1998) (PURA), which provides the Public 
Utility Commission with the authority to make and enforce rules reasonably 
required in the exercise of its powers and jurisdiction.
Cross Reference to Statutes: Public Utility Regulatory Act sec.14.002.
sec.23.107. Educational Percentage Discount Rates (E-Rates). 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 20, 1998.
TRD-9813271
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 936-7308

CHAPTER 26. Substantive Rules Applicable to Telecommunications Service Providers
SUBCHAPTER F. Regulation of Telecommunications Service
16 TAC sec.26.130
The Public Utility Commission of Texas (PUC or commission) proposes new 
sec.26.130, relating to Selection of Telecommunications Utilities. The proposed 
new section will replace sec.23.106 of this title (relating to Selection of 
Telecommunications Utilities). Proposed new sec.26.130 will implement the 
provisions of Texas Senate Bill 253, 75th Legislature, Regular Session (1997), 
which sets out the manner in which a telecommunications utility is permitted to 
switch a customer from one telecommunications utility to another in the state of 
Texas. Project Number 17709 has been assigned to this proceeding. The 
Appropriations Act of 1997, HB 1, Article IX, Section 167 (Section 167) requires 
that each state agency review and consider for readoption each rule adopted by 
that agency pursuant to the Government Code, Chapter 2001 (Administrative 
Procedure Act). Such reviews shall include, at a minimum, an assessment by the 
agency as to whether the reason for adopting or readopting the rule continues to 
exist. The PUC held three workshops to conduct a preliminary review of its 
rules. As a result of these workshops, the PUC is reorganizing its current 
substantive rules located in 16 Texas Administrative Code (TAC) Chapter 23 to 
(1) satisfy the requirements of Section 167; (2) repeal rules no longer needed; 
(3) update existing rules to reflect changes in the industries regulated by the 
commission; (4) do clean-up amendments made necessary by changes in law and 
commission organizational structure and practices; (5) reorganize rules into new 
chapters to facilitate future amendments and provide room for expansion; and (6) 
reorganize the rules according to the industry to which they apply. Chapter 26 
has been established for all commission substantive rules applicable to 
telecommunications service providers. The duplicative sections of Chapter 23 
will be proposed for repeal as each new section is proposed for publication in 
the new chapter. 
The only changes in proposed new sec.26.130 from corresponding sec.23.106 is to 
change the section number designation and move the section to Chapter 26, 
Subchapter F, relating to Regulation of Telecommunications Services; and to 
delete the definitions in sec.23.106(c) since these definitions have been moved 
to sec.26.5 of this title (relating to Definitions). As a result of deleting the 
definitions subsection, other subsections designations change.
Mr. Eric White, assistant general counsel, Office of Regulatory Affairs has 
determined that for each year of the first five-year period the proposed section 
is in effect there will be no fiscal implications for state or local government 
as a result of enforcing or administering the section. 
Mr. White has determined that for each year of the first five years the proposed 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be that customers will be protected from deceptive trade practices 
in the obtaining of authorizations and verifications used to switch the customer 
from one telecommunications utility to another. There will be no effect on small 
businesses as a result of enforcing this section. There is no anticipated 
economic cost to persons who are required to comply with the section as 
proposed. 
Mr. White has also determined that for each year of the first five years the 
proposed section is in effect there will be no impact on employment in the 
geographic area affected by implementing the requirements of the section.
Comments on the proposed new section (16 copies) may be submitted to the Filing 
Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 
13326, Austin, Texas 78711-3326, within 30 days after publication. The 
commission invites specific comments regarding the costs associated with, and 
benefits that will be gained by, implementation of the proposed section. The 
commission will consider the costs and benefits in deciding whether to adopt the 
section. The commission also invites specific comments regarding the Section 167 
requirement as to whether the reason for adopting or readopting the rule 
continues to exist. All comments should refer to Project Number 17709 - 
sec.26.130 relating to Selection of Telecommunications Utilities. 
This new section is proposed under the Public Utility Regulatory Act, Texas 
Utilities Code Annotated sec.14.002 (Vernon 1998) (PURA), which provides the 
Public Utility Commission with the authority to make and enforce rules 
reasonably required in the exercise of its powers and jurisdiction; and 
specifically, Texas Senate Bill 253, 75th Legislature, Regular Session (1997) 
which sets out the manner in which a telecommunications utility is permitted to 
switch a customer from one telecommunications utility to another in the state of 
Texas. 
Cross Index to Statutes: Public Utility Regulatory Act sec.14.002, SB 253. 

sec.26.130. Selection of Telecommunications Utilities. 
(a) Purpose. The provisions of this section are intended to ensure that all 
customers in this state are protected from an unauthorized change in a 
customer's local or long- distance telecommunications utility.
(b) Application. This section, including any reference in this section to 
requirements in 47 Code of Federal Regulations sec.64.1100 and sec.64.1150 
(changing interexchange carriers), applies to all "telecommunications 
utilities," as that term is defined in sec.26.5 of this title (relating to 
Definitions). 
(c) Changes initiated by a telecommunications utility. Before a carrier-
initiated change order is processed, the telecommunications utility initiating 
the change (the prospective telecommunications utility) must obtain verification 
from the customer that such change is desired for each affected telephone 
line(s) and ensure that such verification is obtained in accordance with 47 Code 
of Federal Regulations sec.64.1100. In the case of a carrier-initiated change by 
written solicitation, the prospective telecommunications utility must obtain 
verification as specified in 47 Code of Federal Regulations sec.64.1150, and 
subsection (d) of this section, relating to Letters of Agency. The prospective 
telecommunications utility must maintain records of all carrier-initiated 
changes, including verifications, for a period of 12 months and shall provide 
such records to the customer, if such customer challenges the change, and to the 
commission staff if it so requests. A carrier-initiated change order must be 
verified by one of the methods set out in paragraphs (1)-(4) of this subsection. 
(1) Verification may be obtained by written authorization from the customer in a 
form that meets the requirements of subsection (d) of this section. 
(2) Verification may be obtained by electronic authorization placed from the 
telephone number(s) which is (are) the subject of the change order(s) except in 
exchanges where automatic recording of the ANI from the local switching system 
is not technically possible; however, if verification is obtained by electronic 
authorization, the prospective telecommunications utility must: 
(A) ensure that the electronic authorization confirms the information described 
in subsection (d)(3) of this section; and 
(B) establish one or more toll-free telephone numbers exclusively for the 
purpose of verifying the change whereby calls to the toll-free number(s) will 
connect the customer to a voice response unit or similar mechanism that records 
the required information regarding the change, including automatically recording 
the ANI from the local switching system. 
(3) Verification may be obtained by the customer's oral authorization to submit 
the change order, given to an appropriately qualified and independent third 
party operating in a location physically separate from the marketing 
representative, that confirms and includes appropriate verification data (e.g., 
the customer's date of birth or mother's maiden name). 
(4) Verification may be obtained by sending each new customer an information 
package via first class mail within three business days of a customer's request 
for a telecommunications utility change provided that such verification meets 
the requirements of subparagraph (A) of this paragraph and the customer does not 
cancel service after receiving the notification pursuant to subparagraph (B) of 
this paragraph. 
(A) The information package must contain at least the information and material 
as specified in 47 Code of Federal Regulations sec.64.1100(d) and this 
subparagraph which includes: 
(i) a statement that the information is being sent to confirm a telemarketing 
order placed by the customer within the previous week; 
(ii) the name of the customer's current provider of the service that will be 
provided by the newly requested telecommunications utility;
(iii) the name of the newly requested telecommunications utility; 
(iv) the type of service(s) that will be provided by the newly requested 
telecommunications utility 
(v) a description of any terms, conditions, or charges that will be incurred; 
(vi) the statement, "I understand that I must pay a charge of approximately $ 
(industry average charge) to switch providers. If I later wish to return to my 
current telephone company, I may be required to pay a reconnection charge to 
that company. I also understand that my new telephone company may have different 
calling areas, rates and charges than my current telephone company, and by not 
canceling this change order within 14 days of the date that this information 
package was mailed to me I indicate that I understand those differences (if any) 
and am willing to be billed accordingly; 
(vii) the telephone numbers that will be switched to the newly requested 
telecommunications utility; 
(viii) the name of the person ordering the change; 
(ix) the name, address, and telephone number of both the customer and the newly 
requested telecommunications utility; 
(x) a postpaid postcard which the customer can use to deny, cancel or confirm a 
service order; 
(xi) a clear statement that if the customer does not return the postcard the 
customer's telecommunications utility will be switched to the newly requested 
telecommunications utility within 14 days after the date the information package 
was mailed by (the name of the newly requested telecommunications utility); and 
(xii) the statement, "Complaints about telephone service and unauthorized 
changes in a customer's telephone service provider ("slamming") are investigated 
by the Public Utility Commission of Texas. If a telephone company "slams" you 
and fails to resolve your request to be returned to your original telephone 
company as required by law, or if you would like to know the complaint history 
for a particular telephone company, please write or call the Public Utility 
Commission of Texas, P.O. Box 13326, Austin, Texas 78711-3326, 512/936-7120, or 
toll-free within Texas at 1- 888/782-8477. Hearing and speech-impaired 
individuals with text telephones (TTY) may contact the commission at 512/936-
7136." 
(B) The customer does not cancel the requested change within 14 days after the 
information package is mailed to the customer by the prospective 
telecommunications utility. 
(d) Letters of Agency (LOA). If a telecommunications utility obtains written 
authorization from a customer for a change of telecommunications utility as 
specified in subsection (c)(1) of this section, it shall use a letter of agency 
(LOA) as specified in this subsection. 
(1) The LOA shall be a separate or easily separable document containing only the 
authorizing language described in paragraph (3) of this subsection for the sole 
purpose of authorizing the telecommunications utility to initiate a 
telecommunications utility change. The LOA must be signed and dated by the 
customer of the telephone line(s) requesting the telecommunications utility 
change. 
(2) The LOA shall not be combined with inducements of any kind on the same 
document; except that the LOA may be combined with a check if the LOA and the 
check meet the requirements of subparagraphs (A)-(B) of this paragraph. 
(A) An LOA combined with a check may contain only the language set out in 
paragraph (3) of this subsection, and the necessary information to make the 
check a negotiable instrument. 
(B) A check combined with an LOA shall not contain any promotional language or 
material but shall contain, on the front of the check and on the back of the 
check in easily readable, bold-faced type, type near the signature line, the 
following notice: "By signing this check, I am authorizing (name of the 
telecommunications utility) to be my new telephone service provider for (the 
type of service that the telecommunications utility will be providing). 
(3) LOA language. 
(A) The LOA must be printed clearly and legibly and use only the following 
language: 
Figure: 16 TAC sec.26.130(d)(3)(A) 
(B) In the LOA set out by subparagraph (A) of this paragraph, the 
telecommunications utility seeking authorization shall replace, in bold type, 
the words: 
(i) "(new telecommunications utility)," with its corporate name; 
(ii) "(type of service(s) that will be provided by the new telecommunications 
utility)," with the type of service(s) that it will be providing to the 
customer; and 
(iii) "I must pay a charge of approximately $ (industry average charge)" with 
the text, "there is no charge" only if there is no charge of any kind to the 
customer for the switchover. 
(4) The LOA shall not suggest or require that a customer take some action in 
order to retain the customer's current telecommunications utility. 
(5) If any portion of a LOA is translated into another language, then all 
portions of the LOA must be translated into that language. Every LOA must be 
translated into the same language as any promotional materials, oral 
descriptions or instructions provided with the LOA. 
(e) Changes initiated by a customer. In the case of a customer-initiated change 
of telecommunications utility, the telecommunications utility to which the 
customer has changed his service shall maintain a record of nonpublic customer 
specific information that may be used to establish that the customer authorized 
the change. Such information is to be maintained by the telecommunications 
utility for at least 12 months after the change and will be used to establish 
verification of the customer's authorization. This information shall be treated 
in accordance with the Federal Communications Commission (FCC) rules and 
regulations relating to customer-specific customer proprietary network 
information, and shall be made available to the customer and/or the commission 
staff upon request.
(f) Unauthorized changes. 
(1) Responsibilities of the telecommunications utility that initiated the 
change. If a customer's telecommunications utility is changed and the change was 
not made or verified consistent with this section, the telecommunications 
utility that initiated the unauthorized change shall:
(A) return the customer to the telecommunications utility from which the 
customer was changed (the original telecommunications utility) where technically 
feasible, and if not technically feasible, take all action within the utility's 
control to return the customer to the original utility, including requesting 
reconnection to the original telecommunications utility from a 
telecommunications utility that can execute the reversal, within three business 
days of the customer's request; 
(B) pay all usual and customary charges associated with returning the customer 
to the original telecommunications utility within five business days of the 
customer's request; 
(C) provide all billing records to the original telecommunications utility that 
are related to the unauthorized provision of services to the customer within 10 
business days of the customer's request to return the customer to the original 
telecommunications utility; 
(D) pay the original telecommunications utility any amount paid to it by the 
customer that would have been paid to the original telecommunications utility if 
the unauthorized change had not occurred, within 30 business days of the 
customer's request to return the customer to the original telecommunications 
utility; and 
(E) return to the customer any amount paid by the customer in excess of the 
charges that would have been imposed for identical services by the original 
telecommunications utility if the unauthorized change had not occurred, within 
30 business days of the customer's request to return the customer to the 
original telecommunications utility. 
(2) Responsibilities of the original telecommunications utility. The original 
telecommunications utility from which the customer was changed shall: 
(A) provide the telecommunications utility that initiated the unauthorized 
change with the amount that would have been imposed for identical services by 
the original telecommunications utility if the unauthorized change had not 
occurred, within 10 business days of the receipt of the billing records required 
under paragraph (1)(C) of this subsection; 
(B) provide to the customer all benefits associated with the service(s) (e.g., 
frequent flyer miles) that would have been awarded had the unauthorized change 
not occurred, on receipt of payment for service(s) provided during the 
unauthorized change; and 
(C) maintain a record related to customers that experienced an unauthorized 
change in telecommunications utilities that contains: 
(i) the name of the telecommunications utility that initiated the unauthorized 
change; 
(ii) the telephone number(s) that were affected by the unauthorized change; 
(iii) the date the customer requested that the telecommunications utility that 
initiated the unauthorized change return the customer to the original carrier; 
and 
(iv) the date the customer was returned to the original telecommunications 
utility. 
(g) Notice of customer rights. 
(1) Each telecommunications utility shall make available to its customers the 
notice set out in paragraph (3) of this subsection in both English and Spanish 
as necessary to adequately inform the customer; however, the commission may 
exempt a telecommunications utility from the requirement that the information be 
provided in Spanish upon application and a showing that 10% or fewer of its 
customers are exclusively Spanish- speaking, and that the telecommunications 
utility will notify all customers through a statement in both English and 
Spanish, in the notice, that the information is available in Spanish from the 
telecommunications utility, both by mail and at the utility's offices. 
(2) Each notice provided as set out in paragraph (4)(A) of this subsection shall 
also contain the name, address and telephone numbers where a customer can 
contact the telecommunications utility. 
(3) Customer notice. The notice shall state: 
Figure: 16 TAC sec.26.130(g)(3) 
(4) Distribution and timing of notice. 
(A) Each telecommunications utility shall mail the notice to each of its 
residential and business customers within 30 days of the effective date of this 
section. In addition, the telecommunications utility shall send the notice to 
new customers at the time service is initiated, and upon customer request. 
(B) Each telecommunications utility shall print the notice in the white pages of 
its telephone directories, beginning with the first publication of such 
directories subsequent to the effective date of this section; thereafter, the 
notice must appear in the white pages of each telephone directory published for 
the telecommunications utility. The notice that appears in the directory is not 
required to list the information contained in paragraph (2) of this subsection. 
(h) Compliance and enforcement. 
(1) Records of customer verifications. A telecommunications utility shall 
provide a copy of records maintained under the requirements of subsections (c) - 
(e) of this section to the commission staff upon request. 
(2) Records of unauthorized changes. A telecommunications utility shall provide 
a copy of records maintained under the requirements of subsection (f)
(3) Administrative penalties. If the commission finds that a telecommunications 
utility has repeatedly engaged in violations of this section, the commission 
shall order the utility to take corrective action as necessary, and the utility 
may be subject to administrative penalties pursuant to PURA sec.15.023 and 
sec.15.024. For purposes of sec.15.024(b) and (c), there shall be a rebuttable 
presumption that a single incident of an unauthorized change in a customer's 
telecommunications utility ("slamming") is not accidental or inadvertent if 
subsequent incidents of slamming by the same utility occur within 30 days of 
when the incident is reported to the commission, or during the 30-day cure 
period. Any proceeds from administrative penalties that are collected under this 
section shall be used to fund enforcement of this section. 
(4) Certificate revocation. If the commission finds that a telecommunications 
utility is repeatedly and recklessly in violation of this section, and if 
consistent with the public interest, the commission may suspend, restrict, or 
revoke the registration or certificate of the telecommunications utility, 
thereby denying the telecommunications utility the right to provide service in 
this state. For purposes of this section, a single incident of slamming may be 
deemed reckless if subsequent incidents of slamming by the same 
telecommunications utility occur during the 30-day grace period after an 
incident of slamming is reported to the commission regarding the initial 
incident. 
(i) Notice of identity of a customer's telecommunications utility. Any bill for 
telecommunications services must contain the information contained in paragraphs 
(1)-(4) of this subsection in legible, bold type in each bill sent to a 
customer. Where charges for multiple lines are included in a single bill, the 
information contained in paragraphs (1)-(3) of this subsection must be contained 
on the first page of the bill to the extent possible. Any information that 
cannot be located on the first page must be displayed prominently elsewhere in 
the bill. 
(1) If a bill is for local exchange service, the name and telephone number of 
the telecommunications utility that is providing local exchange service directly 
to the customer. 
(2) If the bill is for interexchange services, the name and telephone number of 
the primary interexchange carrier. 
(3) In such cases where the telecommunications utility providing local exchange 
service also provides billing services for a primary interexchange carrier, the 
first page of the combined bill shall identify both the local exchange and 
interexchange providers, as required by paragraphs (1) and (2) of this 
subsection; however, the commission may, for good cause, waive this requirement 
in exchanges served by incumbent local exchange companies serving 31,000 access 
lines or less. 
(4) A statement, prominently located in the bill, that if the customer believes 
that the local exchange provider or the interexchange carrier named in the bill 
is not the customer's chosen interexchange carrier, that the customer may 
contact: Public Utility Commission of Texas, Office of Customer Protection, P. 
O. Box 13326, Austin, Texas 78711-3326, (512) 936-7120 or in Texas (toll-free) 
1-888-782-8477. Hearing and speech-impaired individuals with text telephones 
(TTY) may contact the commission at (512) 936-7136. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 20, 1998.
TRD-9813269
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 936-7308

SUBCHAPTER J. Costs, Rates and Tariffs
16 TAC sec.26.216
The Public Utility Commission of Texas (PUC or commission) proposes new 
sec.26.216, relating to Educational Percentage Discount Rates (E-Rates). The 
proposed new section will replace sec.23.107 of this title (relating to 
Educational Percentage Discount Rates (E-Rates)). Proposed new sec.26.216 is 
responsive to the Federal Communication Commission's (FCC) Report and Order 
type-name="italic">In the Matter of Federal- State Joint Board on Universal 
Service in CC Docket Number 96-45, FCC 97-157 (May 7, 1997) which implemented 
key portions of the federal Telecommunications Act of 1996 (FTA), sec.254, and 
adopted a federal universal service support mechanism to fund discounts on 
interstate and intrastate telecommunications services, Internet access, and 
internal connections for schools and libraries. Project Number 17709 has been 
assigned to this proceeding. 
The Appropriations Act of 1997, HB 1, Article IX, Section 167 (Section 167) 
requires that each state agency review and consider for readoption each rule 
adopted by that agency pursuant to the Government Code, Chapter 2001 
(Administrative Procedure Act). Such reviews shall include, at a minimum, an 
assessment by the agency as to whether the reason for adopting or readopting the 
rule continues to exist. The PUC held three workshops to conduct a preliminary 
review of its rules. As a result of these workshops, the PUC is reorganizing its 
current substantive rules located in 16 Texas Administrative Code (TAC) Chapter 
23 to (1) satisfy the requirements of Section 167; (2) repeal rules no longer 
needed; (3) update existing rules to reflect changes in the industries regulated 
by the commission; (4) do clean-up amendments made necessary by changes in law 
and commission organizational structure and practices; (5) reorganize rules into 
new chapters to facilitate future amendments and provide room for expansion; and 
(6) reorganize the rules according to the industry to which they apply. Chapter 
26 has been established for all commission substantive rules applicable to 
telecommunications service providers. The duplicative sections of Chapter 23 
will be proposed for repeal as each new section is proposed for publication in 
the new chapter. 
The only changes proposed in new sec.26.216 from corresponding sec.23.107 are to 
change the section number designation and move the section to Chapter 26, 
Subchapter J, relating to Costs, Rates and Tariffs; and to delete existing 
sec.23.107(c), as the requirements of this section have already been fulfilled.
Ms. Janis Ervin, senior utilities analyst, Telecommunications Industry Analysis 
Division has determined that for each year of the first five-year period the 
proposed section is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the section. 
Ms. Ervin has determined that for each year of the first five years the proposed 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be the ability of schools and libraries to affordably access the 
broadest array of telecommunications services possible to use and teach students 
to use state of the art telecommunications technologies as they arrive on the 
commercial market. In addition, the discounting of telecommunications services 
under this section will provide schools and libraries with the maximum 
flexibility to purchase a package of telecommunications services that they 
believe will meet their needs most effectively and efficiently. There will be no 
effect on small businesses as a result of enforcing this section. There is no 
anticipated economic cost to persons who are required to comply with the section 
as proposed. 
Ms. Ervin has also determined that for each year of the first five years the 
proposed section is in effect there will be no impact on employment in the 
geographic area affected by implementing the requirements of the section.
Comments on the proposed new section (16 copies) may be submitted to the Filing 
Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 
13326, Austin, Texas 78711-3326, within 30 days after publication. The 
commission invites specific comments regarding the costs associated with, and 
benefits that will be gained by, implementation of the proposed section. The 
commission will consider the costs and benefits in deciding whether to adopt the 
section. The commission also invites specific comments regarding the Section 167 
requirement as to whether the reason for adopting or readopting the rule 
continues to exist. All comments should refer to Project Number 17709 - 
sec.26.216 relating to Educational Percentage Discount Rates (E-Rates).
This new section is proposed under the Public Utility Regulatory Act, Texas 
Utilities Code Annotated sec.14.002 (Vernon 1998) (PURA), which provides the 
Public Utility Commission with the authority to make and enforce rules 
reasonably required in the exercise of its powers and jurisdiction.
Cross Index to Statutes: Public Utility Regulatory Act sec.14.002.

sec.26.216. Educational Percentage Discount Rates (E-Rates). 
(a) Purpose. The purpose of this section is to establish educational percentage 
discount rates (E-Rates) for intrastate telecommunications services, Internet 
access, and internal connections that are equivalent to those adopted for 
interstate services by the Federal Communications Commission (FCC) in 47 Code of 
Federal Regulations part 54, subpart F (Universal Service Support for Schools 
and Libraries). 
(b) Provisions governing intrastate E-Rates. 
(1) Intrastate services eligible for E-Rates. The percentage discount rates 
available pursuant to 47 Code of Federal Regulations part 54, subpart F to 
eligible schools, libraries, and consortia as defined by 47 Code of Federal 
Regulations part 54, subpart F shall apply to the following intrastate services: 
(A) all commercially available telecommunications services provided by 
telecommunications carriers; 
(B) Internet access; and 
(C) installation and maintenance of internal connections. 
(2) Eligibility for intrastate E-Rates. Schools, libraries, and consortia 
eligible for E-Rates pursuant to 47 Code of Federal Regulations part 54, subpart 
F shall comply with the provisions of 47 Code of Federal Regulations part 54, 
subpart F in order to receive the intrastate E-Rates. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 20, 1998.
TRD-9813270
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 936-7308

TITLE 19. EDUCATION
PART I. Texas Higher Education Coordinating Board
CHAPTER 12. Proprietary Schools
SUBCHAPTER A. Purpose and Authority
19 TAC sec.sec.12.21, 12.22, 12.24
The Texas Higher Education Coordinating Board proposes amendments to 
sec.sec.12.21, 12.22, and 12.24 concerning Proprietary Schools (Purpose and 
Authority). The amendments to the rules will define and clarify terms; 
incorporate specific programmatic and institutional standards into the rules; 
facilitate enforcement of appropriate minimum standards; and facilitate 
implementation of the on-going degree program review process. 
Glenda Barron, Assistant Commissioner for Community and Technical Colleges has 
determined that for the first five-year period the rule is in effect there will 
be no fiscal implications as a result of enforcing or administering the rule. 
Dr. Barron also has determined that for the first five years the rule is in 
effect the public benefit will be that minimum standards for the approval of 
applied associate degree programs at proprietary schools will be enforced. There 
will be no effect on state or local government or small businesses. There is no 
anticipated economic costs to persons who are required to comply with the rule 
as proposed. 
Comments on the amendments to the rules may be submitted to Dr. Don W. Brown, 
Commissioner of Higher Education, Texas Higher Education Coordinating Board, 
P.O. Box 12788, Capitol Station, Austin, Texas 78711. 
The amendments to the rules are proposed under Texas Education Code, Chapter 61 
and Section 132.001, which provides the Texas Higher Education Coordinating 
Board with the authority to adopt rules concerning Proprietary Schools (Purpose 
and Authority). 
There were no other sections or articles affected by the proposed amendments. 

sec.12.21. Purpose. 
<nl>The purpose of this chapter is to assure the quality and integrity of 
applied associate degree programs offered by proprietary institutions by 
establishing minimum standards and operating requirements, encouraging 
continuous improvement of degree programs, and promoting institutional 
accountability. <ol> [It is the intent of the Legislature to encourage 
proprietary postsecondary institutions and to ensure the integrity of applied 
associate degrees offered by proprietary institutions.] 
[(1) Proprietary schools, as defined in the Texas Education Code, Section 
132.001, offering programs in which applied associate degrees are awarded, shall 
meet minimum institutional and educational program quality standards.] 
[(2) Applied associate degrees offered by proprietary schools shall meet minimum 
institutional and educational program quality standards established by the 
Board.] 

sec.12.22. Authority. 
The Texas Education Code, <nl>Chapter 132, Section 063, and Chapter 61, 
Subchapter G<ol> [Section 132.063] authorizes the Texas Higher Education 
Coordinating Board to <nl>establish and<ol> enforce minimum standards for the 
approval <nl>and on- going assessment<ol> of programs of study leading to 
<nl>degrees offered by proprietary schools.<ol> [the award of the applied 
associate degree.] 
(1)-(4) (No change.) 

sec.12.24. Definitions. 
The following words and terms shall have the following meanings, unless the 
context clearly indicates otherwise. 
<nl>(1)<ol> Acknowledgment of accreditation The Board's understanding that an 
accreditor is recognized and approved by the United States Department of 
Education as an accreditor of applied associate degree programs offered by 
proprietary institutions. 
<nl>(2)<ol> Agent - A proprietary institution owner, partner, officer, director, 
administrator, admissions representative, or financial aid administrator who 
represents the institution in an official capacity. Persons employed in 
clerical, custodial, or similar positions, or shareholders with no direct 
relationship to the institution, are not considered agents of an institution. 
<nl>(3)<ol> Annual Fee - A fee established by the Board, collected from 
proprietary institutions with authorization to grant degrees on an annual basis, 
and is used to offset the cost of proprietary degree program oversight. 
<nl>(4)<ol> Applied Associate Degree - Refers specifically to the A.A.A., 
A.A.S., and the A.O.S. degrees in this chapter. 
<nl>(5)<ol> Appropriate credentials in counseling - Certification by the 
National Board for Certified Counselors or Texas licensure to practice 
counseling. 
<nl>(6)<ol> Appropriate training in counseling - An earned graduate degree in 
counseling, student personnel (with counseling emphasis), counseling psychology, 
or closely related field, from a regionally accredited college or university. 
<nl>(7)<ol> Articulation - A planned process linking educational institutions 
and experiences to assist students in making a smooth transition from one level 
of technical and vocational education to another without experiencing delays or 
duplication of learning. 
<nl>(8)<ol> Associate of Occupational Studies - Refers specifically to the 
A.O.S. degree. The A.O.S. degree is approved according to the conditions of the 
Coordinating Board policy adopted on April 30, 1993: The State of Texas has four 
proprietary schools awarding the A.O.S. degree: <nl> MTI College of Business and 
Technology (known as<ol> Microcomputer Technology Institute <nl>when this policy 
was adopted<ol>, Universal Technical Institute, Southwest School of Electronics, 
and Western Technical Institute. The A.O.S. degree is awarded for the following 
fields: automotive mechanics, diesel mechanics, refrigeration, electronics, and 
business. Each of these four schools may continue to award the A.O.S. degree for 
those fields listed above and shall be restricted to those fields. 
Subspecialities within these fields and under the present titles may be offered 
and advertised upon providing prior notice to the Board. No new A.O.S. degree 
programs in other fields from these four schools or any other schools will be 
considered by the Board. Should any of these four schools choose to propose to 
offer degrees in other fields or should these four institutions open schools 
outside of the metropolitan locations in which they were operating as of April 
29, 1993, they will be required to design programs which lead to the A.A.S. 
degree. 
<nl>(9)<ol> Basic Computer Instruction - Formal course work in the fundamentals 
of personal computer operation. 
<nl>(10)<ol> Board - The Texas Higher Education Coordinating Board. 
<nl>(11)<ol> Change of ownership - Any change in control of a school or an 
agreement to transfer control of a school. The control of a school is considered 
to have changed: 
(A) In the case of ownership by an individual, when more than 50 percent of the 
school has been sold or transferred; 
(B) In the case of ownership by a partnership or a corporation, when more than 
50 percent of the school or of the owning partnership or corporation has been 
sold or transferred; or 
(C) When the board of directors, officers, shareholders, or similar governing 
body has been changed to such an extent as to significantly alter the management 
and control of the school. 
(D) A change of ownership and control does not include a transfer which occurs 
as a result of the retirement or death of the owner if transfer is to a member 
of the owner's family who has been directly and constantly involved in the 
management of the institution for a minimum of two years preceding the transfer. 
For the purposes of this section, a member of the owner's family is a parent, 
sibling, spouse or child; spouse's parent or sibling; or sibling's or child's 
spouse. 
<nl>(12)<ol> Cited - Any reference to an institution in a negative finding or 
action by an accreditor. 
<nl>(13)<ol> Commissioner - The Commissioner of Higher Education. 
<nl>(14)<ol> Concurrent Instruction - Students enrolled in different classes, 
courses, and/or subjects being taught, monitored, or supervised simultaneously 
by a single faculty member. 
<nl>(15)<ol> Contract Instruction - Specifically targeted instruction designed 
by a proprietary school and a contracting entity. 
<nl>(16)<ol> Degree - Any title or designation, mark, abbreviation, appellation, 
or series of letters or words, including associate, bachelor's, master's, 
doctor's and their equivalents, which signify, purport to signify, or are 
generally taken to signify satisfactory completion of the requirements of all or 
part of a program of study which is generally regarded and accepted as an 
academic/occupational degree-level program among Texas postsecondary 
institutions. 
<nl>(17)<ol> Developmental courses - Courses designated as remedial or 
compensatory education courses. Credit earned in a developmental course is not 
applicable toward the applied associate degree. Also see remediation. 
<nl>(18)<ol> Exempt - A degree-granting institution which is exempt from Texas 
Education Code, Chapter 132. 
<nl>(19)<ol> Faculty member - A teacher as described in sec.12.44(a) and 
sec.12.44(b) of this title (relating to Basic Standards). 
<nl>(20)<ol> Full-time faculty member - A person whose major employment is with 
the institution, whose primary assignment is teaching, and whose employment is 
based on an agreement for full-time employees. 
<nl>(21)<ol> Institution - See proprietary school.
<nl>(22)<ol> Library/Learning Resources - Instructional materials (e.g. books, 
audio-visual equipment, and computers) that support the educational/vocational 
development of the student. 
<nl>(23)<ol> Multiple Site Program Offering - Any extension location where 
course(s) which are alleged to entitle a student to an applied associate degree 
are offered. 
<nl>(24)<ol> Newly-enrolled student - A person who has been admitted to a 
program of study for the first time. 
<nl>(25)<ol> Owner - The proprietor of a school including an individual; a 
partnership including all full, silent, and limited partners; a corporation or 
corporations including directors, officers, and each shareholder owning shares 
of issued and outstanding stock aggregating at least 10 percent of the total of 
the issued and outstanding shares. 
<nl>(26)<ol> Person - Any individual, firm, partnership, association, 
corporation, or other private entity or combination thereof. 
<nl>(27)<ol> Program Approval - The process whereby an institution requests 
authorization to implement a technical or vocational program leading to the 
applied associate degree. 
<nl>(28)<ol> Program of Study - Any course or grouping of courses which entitle 
a student to an applied associate degree or to credits which are applicable to 
an applied associate degree. 
<nl>(29)<ol> Proprietary School - Any business enterprise operated for a profit, 
or on a nonprofit basis, that maintains a place of business in the State of 
Texas or solicits business within the State of Texas, and that is not 
specifically exempted by this chapter, and: 
(A) that offers or maintains a course or courses of instruction or study; or 
(B) at which place of business such a course or courses of instruction or study 
is available through classroom instruction or by correspondence or both to a 
person for the purpose of training or preparing the person for a field of 
endeavor in a business, trade, technical, or industrial occupation, or for 
avocational or personal improvement. 
<nl>(30)<ol> Prospective student - A person who expresses interest in a program 
of study and who is provided with written information about the institution or 
any of the institutions' programs. 
<nl>(31)<ol> Learning resource center administrator - A person who holds an 
earned degree in library science from a regionally accredited college or 
university or who is otherwise qualified by experience acceptable to the Board 
to oversee the activities of a proprietary school learning resources center or 
library. 
<nl>(32)<ol> Remediation - An activity designed to teach basic competency in 
such areas as reading, writing, oral communications, arithmetic, or other 
rudimentary subjects. 
<nl>(33)<ol> Representative - See Agent. 
<nl>(34)<ol> Resident - A faculty member who has been formally hired or has an 
employment agreement with the institution. 
<nl>(35)<ol> Returning student - A person who is returning to a program of study 
following withdrawal or other absence of more than one academic semester or one 
academic quarter. 
<nl>(36)<ol> Target market area - The local, regional, statewide, and/or 
national area from which the institution's students are drawn and in which 
employment opportunities have been identified for graduates of that 
institution's applied associate degree programs. 
[TEA - The Texas Education Agency.] 
<nl>(37)<ol> Teaching day - The time period when regular classes are scheduled 
including the time period for regular evening classes. 
<nl>(38)<ol> Teach-out agreement - A formal arrangement between a closed 
proprietary institution and another institution authorized by the Coordinating 
Board to grant the applied associate degree, which provides for student 
transfer, completion of degree requirements, and awarding degrees to students 
transferred from the closed proprietary school. 
<nl>(39)<ol> Teach-out Institution - An institution that is authorized by the 
Coordinating Board to grant the applied associate degree and that has formally 
accepted the transfer of students from a proprietary school that has closed. 
<nl>(40)<ol> Testing irregularity - Any act of dishonesty involving the TASP 
Test. Further definition is contained in Chapter 5, Subchapter P, Texas Higher 
Education Coordinating Board Rules. 
<nl>(41)<ol> Texas Academic Skills Program (TASP) Test - The test required by 
TEC 51.306 which shall be uniformly administered statewide on days prescribed by 
the Board and shall be scored by the testing contractor. The test measures 
college readiness in reading, writing, and mathematics and includes a written 
essay. It is administered under secure conditions and each student is provided 
with diagnostic information regarding test performance.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 21, 1998.
TRD-9813356
James McWhorter
Assistant Commissioner for Administration
Texas Higher Education Coordinating Board
Proposed date of adoption: October 23, 1998
For further information, please call: (512) 483-6162

SUBCHAPTER B. Basic Standards
19 TAC sec.12.41, sec.12.44
The Texas Higher Education Coordinating Board proposes amendments to sec.12.41 
and sec.12.44 concerning Proprietary Schools (Basic Standards). The amendments 
to the rules will define and clarify terms; incorporate specific programmatic 
and institutional standards into the rules; facilitate enforcement of 
appropriate minimum standards; and facilitate implementation of the on-going 
degree program review process. 
Glenda Barron, Assistant Commissioner for Community and Technical Colleges has 
determined that for the first five-year period the rule is in effect there will 
be no fiscal implications as a result of enforcing or administering the rule. 
Dr. Barron also has determined that for the first five years the rule is in 
effect the public benefit will be that minimum standards for the approval of 
applied associate degree programs at proprietary schools will be enforced. There 
will be no effect on state or local government or small businesses. There is no 
anticipated economic costs to persons who are required to comply with the rule 
as proposed. 
Comments on the amendments to the rules may be submitted to Dr. Don W. Brown, 
Commissioner of Higher Education, Texas Higher Education Coordinating Board, 
P.O. Box 12788, Capitol Station, Austin, Texas 78711. 
The amendments to the rules are proposed under Texas Education Code, Chapter 61 
and Section 132.001, which provides the Texas Higher Education Coordinating 
Board with the authority to adopt rules concerning Proprietary Schools (Basic 
Standards). 
There were no other sections or articles affected by the proposed amendments. 

sec.12.41. Minimum Standards. 
The [program] standards for applied associate <nl>degree <ol> [degrees] 
<nl>programs in proprietary schools embrace the standards for 
vocational/technical degree programs in public community and technical colleges 
with considerations made for the legitimate differences between public and 
privately-owned institutions. The standards specified in this subchapter apply 
to proprietary institutions offering applied associate degrees. Institutions 
seeking authority to offer a baccalaureate or higher degree must seek approval 
from the Board and are subject to the standards contained in Chapter 5, 
Subchapter K, of this title (relating to Transfer of Lower Division Course 
Credit) Board rules.<ol> [approved by the Coordinating Board reflect the 
criteria contained in Section IV. ("Educational Program") and Section V. 
("Educational Support Services") of the Criteria for accreditation of the 
Commission on Colleges, Southern Associate of Colleges and Schools.] 
<nl>(1)<ol> Application For A Degree Program. The application for a certificate 
of authorization to offer a degree shall contain, at minimum, all information, 
documentation, and material required by the Guidelines for Instructional 
Programs in Workforce Education. In addition, the application shall contain a 
description of the purpose of the institution, names of sponsors or owners of 
the institution, regulations, rules, constitutions, bylaws, or other regulations 
established for the governance and operation of the institution; the names and 
addresses of the chief administrative officer, and the principal administrators 
and each member of the board of trustees or other governing board. In addition 
the application shall contain a full description of the admission requirements 
and a description of the facilities and equipment utilized by the institution. 
No less than 30 days prior to implementation of the program, the institution 
must submit the names and addresses of the faculty who will, in fact, teach in 
the program of study, with the highest degree held by each. 
<nl>(2)<ol> Qualifications of Institutional Officers. The character, education, 
and experience in higher education of governing board members, administrators, 
supervisors, counselors, agents, and other institutional officers shall be such 
as may be reasonably ensure that students will receive education consistent with 
the objectives of the course or program of study. 
<nl>(3)<ol> Instructional Assessment. Provisions shall be made for the continual 
assessment of the program of study, including the evaluation and improvement of 
instruction. 
<nl>(4)<ol> Curriculum. The quality, content, and sequence of each course, 
curriculum, or program of instruction, training, or study shall be appropriate 
to the purpose of the institution and shall be such that the institution may 
reasonably and adequately achieve the stated objectives of the course or 
program. Substantially all of the courses in the program of study shall be 
offered in organized classes by the institution. 
<nl>(5)<ol> General Education. The degree program shall contain a general 
education component consisting of the number of credit hours specified in the 
Guidelines for Instructional Programs in Workforce Education. 
<nl>(A)<ol> This component shall be drawn from each of the following areas: 
humanities and fine arts, social and behavioral science, natural sciences and 
mathematics. It shall include courses to develop skills in written and oral 
communication and in basic computer operation. Courses designed to correct 
deficiencies, remedial courses, and leveling courses may not count toward course 
requirements for the degree. 
<nl>(B)<ol> The institution may arrange for all or part of the general education 
component to be taught by another institution with the following provisions: 
there must be a written agreement between the institutions to provide the 
general education component, courses must be offered in organized classes and 
the providing institution shall be accredited by a recognized accrediting agency 
or must possess a Coordinating Board certificate of authorization to grant 
degrees. 
<nl>(6)<ol> Credit for Prior Learning. If an institution awards credit for prior 
learning obtained outside a formal collegiate setting, the institution must 
establish and adhere to a systematic method for evaluating that prior learning, 
equating it with course content appropriate to the institution's authorized 
degree program(s). The method of evaluating prior learning must be subject to 
ongoing review and evaluation by the institution's teaching faculty. In no 
instance shall course credit be awarded solely on the basis of life experience 
or years of service in a position or job. Recognized evaluative examinations 
such as the advanced placement program or the college level examination program 
may be used to evaluate prior learning. 
<nl>(7)<ol> Library. The institution shall have in its possession or under its 
direct control a sufficient quality and variety of library holdings to 
adequately support its own curriculum.
<nl>(A)<ol> All holdings shall be cataloged according to the Dewey Decimal, 
Library of Congress, or similar system. There must be a convenient and organized 
system whereby students may borrow library materials available for circulation. 
The library must be open and accessible to students and faculty members 
throughout the teaching day and at appropriate times before and after scheduled 
classes. The library shall have adequate facilities to contain the holdings, and 
space for student and faculty study. 
<nl>(B)<ol> The institution must employ a learning resources administrator who 
shall be responsible for oversight of the library and on-site learning 
resources. The learning resources administrator may perform additional duties 
and assignments at the institution. 
<nl>(C)<ol> The institution is encouraged to seek an agreement with a nearby 
academic library which permits students to use those facilities. When such 
arrangements are made, the agreement shall be in writing. In no instance will an 
institution be permitted to rely upon external library resources in lieu of 
establishing and maintaining an adequate library on-site. 
<nl>(8)<ol> Facilities. The institution shall have adequate space, equipment, 
and instructional materials to provide good quality education and training. 
<nl>(9)<ol> Financial Resources and Stability. The institution shall have the 
adequate financial resources and financial stability to satisfy the financial 
regulations of the Texas Workforce Commission, the U. S. Department of Education 
if the institution participates in Title IV financial aid programs, and the 
institution's accrediting agency. The institution shall furthermore have 
sufficient financial reserves so that it would be able to teach-out currently 
enrolled students if it were unable to admit any new students. 
<nl>(10)<ol> Financial Records. Financial records and reports of the institution 
shall be kept and made separate and distinct from those of any affiliated or 
sponsoring person or entity. Financial records and reports shall be in 
accordance with generally accepted accounting practices. 
<nl>(11)<ol> Academic Freedom and Faculty Security. The institution shall adopt 
and distribute to all members of the faculty a statement assuring freedom in 
teaching, scholarly inquiry, and dissemination of knowledge. This requirement in 
no way limits an institution's legitimate evaluation of faculty member 
performance. 
<nl>(A)<ol> All policies concerning promotion, non-renewal or termination of 
appointments, including for cause, shall be described in writing and furnished 
to all faculty members. 
<nl>(B)<ol> The specific terms and conditions of employment of each faculty 
member shall be clearly described in writing and furnished to each faculty 
member. 
<nl>(12)<ol> Academic Records. A system of record keeping shall be established 
and maintained in a manner consistent with accepted and professional practice in 
higher education. Records shall be securely maintained at all times. Contents of 
records shall, at minimum, include attendance and progress or grades. Two copies 
of the information necessary to generate student transcripts shall be maintained 
at separate locations. At least one copy shall be secured in a manner which is 
resistant to destruction by fire and natural disaster. Transcripts shall be 
issued upon the request of students or former students. An institution may, 
however, withhold a student's transcript under the condition stipulated in 
132.062, Texas Education Code. 
<nl>(13)<ol> Catalog. The institution shall provide students and other 
interested persons with a catalog or brochure containing at minimum the mission 
of the institution; a statement of admissions policies; information describing 
the purpose, length, and objectives of the program(s) offered by the 
institution; the schedule of tuition, fees, and all other charges and expenses 
necessary for completion of the course of study; cancellation and refund 
policies; a definition of the unit of credit as it applies at the institution; 
an explanation of satisfactory progress as it applies at the institution; an 
explanation of the grading or marking system; the institution's calendar 
including the beginning and ending dates for each instructional term, holidays, 
and registration dates; a listing of full-time faculty members showing highest 
earned degree and identifying the institution which awarded the degree; areas of 
faculty specialization; names and titles of administrators; a statement of legal 
control with the names of the trustees, directors, and officers of the 
corporation; a complete listing of all scholarships offered, if any; a statement 
describing the nature and extent of available student services; and any 
disclosures specified by the Board or defined in Board rules. This information 
shall be provided to prospective students prior to enrollment. The institution 
shall, on an annual basis, furnish the Board with a copy of its most current 
catalog and a current roster of all faculty members including names, addresses, 
teaching assignments, and highest degree earned. 
<nl>(14)<ol> Refund Policy. The institution shall adopt, publish, and adhere to 
a fair and equitable cancellation and refund policy. 
<nl>(15)<ol> Credentials. Upon completion of an approved program of study, 
students shall be given appropriate credentials by the institution indicating 
that the program undertaken has been satisfactorily completed. 
<nl>(16)<ol> Student Rights and Responsibilities. A handbook, catalog, or other 
publication listing the student's rights and responsibilities shall be published 
and supplied to the student upon enrollment in the institution. The institution 
shall establish a clear and fair policy regarding due process in disciplinary 
matters and shall inform each student of these policies in writing. 
<nl>(17)<ol> Housing. Student housing owned, maintained, or approved by the 
institution, if any, shall be appropriate, safe, adequate, and in compliance 
with applicable state and local requirements.
<nl>(18)<ol> Legal Compliance. The institution shall be maintained and operated 
in compliance with all applicable rules and regulations of the Texas Workforce 
Commission. 
<nl>(19)<ol> Open and Accurate Representation of Activities. Neither the 
institution or its agents shall engage in advertising, recruiting, sales, 
collection, financial credit, or other practices of any type which are false, 
deceptive, or misleading. 

sec.12.44. Faculty Qualifications. 
<nl>(a)<ol> The character, education, and experience in education of the faculty 
shall be such as may reasonably ensure that students will receive an education 
consistent with the objectives of the program of study. 
<nl>(b)<ol> [(a)] General Education Faculty -- All full-time and part-time 
faculty members teaching general education courses must have completed 18 
graduate semester hours in their teaching field and hold a master's degree. 
Exceptions to academic preparation must be justified by the postsecondary 
institution on an individual basis. Exceptions are subject to review and 
approval by the Coordinating Board. It is the institution's responsibility to 
keep documentation of faculty qualifications on file. 
<nl>(c)<ol> [(b)] Technical/Specialty Faculty -- All full-time and part-time 
faculty in technical/specialty courses must have both academic and work 
experience. The minimum academic preparation for faculty teaching in 
professional and technical fields must be at the degree level at which the 
faculty member is teaching. Faculty who teach technical specialty courses must 
have three years of direct or closely related work experience exclusive of 
teaching. Exceptions to academic preparation or work experience must be 
justified by the institution on an individual basis. Exceptions are subject to 
review and approval by the Coordinating Board. It is the institution's 
responsibility to keep documentation of faculty qualifications on file. 
<nl>(d)<ol> [(c)] It shall be the responsibility of the institution to maintain 
an in-service continuing education program to encourage professional growth and 
development of faculty members. 
<nl>(e)<ol> [(d)] All institutions shall demonstrate promotion of teaching 
excellence by developing a written plan for faculty professional development. 
The plan must address full and part-time faculty preparation and professional 
development. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 21, 1998.
TRD-9813357
James McWhorter
Assistant Commissioner for Administration
Texas Higher Education Coordinating Board
Proposed date of adoption: October 23, 1998
For further information, please call: (512) 483-6162

19 TAC sec.12.56
The Texas Higher Education Coordinating Board proposes new sec.12.56 concerning 
Proprietary Schools (Basic Standards). The new section to the rules will define 
and clarify terms; incorporate specific programmatic and institutional standards 
into the rules; facilitate enforcement of appropriate minimum standards; and 
facilitate implementation of the on-going degree program review process. 
Glenda Barron, Assistant Commissioner for Community and Technical Colleges has 
determined that for the first five-year period the rule is in effect there will 
be no fiscal implications as a result of enforcing or administering the rule. 
Dr. Barron also has determined that for the first five years the rule is in 
effect the public benefit will be that minimum standards for the approval of 
applied associate degree programs at proprietary schools will be enforced. There 
will be no effect on state or local government or small businesses. There is no 
anticipated economic costs to persons who are required to comply with the rule 
as proposed. 
Comments on the new section to the rules may be submitted to Dr. Don W. Brown, 
Commissioner of Higher Education, Texas Higher Education Coordinating Board, 
P.O. Box 12788, Capitol Station, Austin, Texas 78711. 
The new section to the rules is proposed under Texas Education Code, Chapter 61 
and Section 132.001, which provides the Texas Higher Education Coordinating 
Board with the authority to adopt rules concerning Proprietary Schools (Basic 
Standards). 
There were no other sections or articles affected by the proposed amendments.

sec.12.56. Concurrent Instruction. 
(a) Concurrent instruction of students enrolled in a degree program or in any 
component of a degree program is prohibited. 
(b) The following activities do not constitute concurrent instruction: 
(1) voluntary participation in laboratory and/or skill building activities 
outside of required lecture and laboratory class sessions; 
(2) voluntary participation in study and/or review sessions outside of required 
lecture and laboratory class sessions; 
(3) sitting for proctored examinations; 
(4) field trips; and 
(5) extracurricular activities. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 21, 1998.
TRD-9813358
James McWhorter
Assistant Commissioner for Administration
Texas Higher Education Coordinating Board
Proposed date of adoption: October 23, 1998
For further information, please call: (512) 483-6162

SUBCHAPTER C. Operational Provisions
19 TAC sec.12.80, sec.12.81
The Texas Higher Education Coordinating Board proposes amendments to sec.12.80 
and sec.12.81 concerning Proprietary Schools (Operational Provisions). The 
amendments to the rules will define and clarify terms; incorporate specific 
programmatic and institutional standards into the rules; facilitate enforcement 
of appropriate minimum standards; and facilitate implementation of the on-going 
degree program review process.
Glenda Barron, Assistant Commissioner for Community and Technical Colleges has 
determined that for the first five-year period the rule is in effect there will 
be no fiscal implications as a result of enforcing or administering the rule. 
Dr. Barron also has determined that for the first five years the rule is in 
effect the public benefit will be that minimum standards for the approval of 
applied associate degree programs at proprietary schools will be enforced. There 
will be no effect on state or local government or small businesses. There is no 
anticipated economic costs to persons who are required to comply with the rule 
as proposed. 
Comments on the amendments to the rules may be submitted to Dr. Don W. Brown, 
Commissioner of Higher Education, Texas Higher Education Coordinating Board, 
P.O. Box 12788, Capitol Station, Austin, Texas 78711. 
The amendments to the rules are proposed under Texas Education Code, Chapter 61 
and Section 132.001, which provides the Texas Higher Education Coordinating 
Board with the authority to adopt rules concerning Proprietary Schools 
(Operational Provisions). 
There were no other sections or articles affected by the proposed amendments.

sec.12.80. Exemption from Texas Education Code, Chapter 132. 
(a) An institution which requests and is granted exemption <nl> by the Texas 
Workforce Commission<ol> from Texas Education Code, Chapter 132, may not operate 
under the provisions of this chapter. Upon becoming exempt, a degree-granting 
institution must immediately: 
(1)-(2) (No change.) 
(b) (No change.) 

sec.12.81. Withdrawal of Authorization to Grant Degrees by Board Action. 
(a)-(c) (No change.) 
<nl>(d)<ol> Degree-granting authorization is automatically withdrawn if, after 
receiving 60 days advance notification of the annual fee amount and the date 
upon which the fee is due, an institution fails to remit the fee by the due 
date. Authorization to grant degrees may be reinstated by the commissioner upon 
recommendation of the staff and receipt of the established reinstatement fee.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 21, 1998.
TRD-9813359
James McWhorter
Assistant Commissioner for Administration
Texas Higher Education Coordinating Board
Proposed date of adoption: October 23, 1998
For further information, please call: (512) 483-6162

19 TAC sec.12.82
The Texas Higher Education Coordinating Board proposes new sec.12.82 concerning 
Proprietary Schools (Operational Provisions). The new section to the rules will 
define and clarify terms; incorporate specific programmatic and institutional 
standards into the rules; facilitate enforcement of appropriate minimum 
standards; and facilitate implementation of the on-going degree program review 
process. 
Glenda Barron, Assistant Commissioner for Community and Technical Colleges has 
determined that for the first five-year period the rule is in effect there will 
be no fiscal implications as a result of enforcing or administering the rule. 
Dr. Barron also has determined that for the first five years the rule is in 
effect the public benefit will be that minimum standards for the approval of 
applied associate degree programs at proprietary schools will be enforced. There 
will be no effect on state or local government or small businesses. There is no 
anticipated economic costs to persons who are required to comply with the rule 
as proposed. 
Comments on the new section to the rules may be submitted to Dr. Don W. Brown, 
Commissioner of Higher Education, Texas Higher Education Coordinating Board, 
P.O. Box 12788, Capitol Station, Austin, Texas 78711. 
The new section to the rules is proposed under Texas Education Code, Chapter 61 
and Section 132.001, which provides the Texas Higher Education Coordinating 
Board with the authority to adopt rules concerning Proprietary Schools 
(Operational Provisions). 
There were no other sections or articles affected by the proposed amendments.

sec.12.82. Acknowledgment of Accreditation. 
(a) An organization which accredits proprietary institutions authorized to grant 
the applied associate degree in Texas is acknowledged by the Board if the 
accreditor is recognized by the U.S. Department of Education as an accreditor of 
applied associate degree programs. 
(b) Acknowledged accreditors of applied associate degree programs offered by 
proprietary institutions in Texas are the Accrediting Commission of Career 
Schools and Colleges of Technology), the Accrediting Council for Independent 
Colleges and Schools (ACICS), and the Commission on Education (COE). 
(c) Acknowledgment of accreditation does not exempt an institution from Board 
review and oversight. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 21, 1998.
TRD-9813360
James McWhorter
Assistant Commissioner for Administration
Texas Higher Education Coordinating Board
Proposed date of adoption: October 23, 1998
For further information, please call: (512) 483-6162

CHAPTER 17.Campus Planning
SUBCHAPTER B.Application for Approval of New Construction and Major Repair and 
Rehabilitation
19 TAC sec.17.45
The Texas Higher Education Coordinating Board proposes an amendment to 
sec.17.45, concerning Application for Approval of New Construction and Major 
Repair and Rehabilitation (Energy Conservation Projects). The 75th Legislature 
modified section 51.927 of the Texas Education Code, dealing with energy 
performance contracting. One of the modifications requires that the Board, in 
making its recommendations regarding energy performance contracts, consider 
evaluations of the Texas Energy Coordination Council (TECC). The amendments to 
the rule will make it clear that TECC is included in the review process. 
Previously, energy conservation projects were only reviewed by the Coordinating 
Board and the State Energy Conservation Office (SECO) (formerly Energy 
Management Center). These projects now also require TECC in the review process. 
The rules are being amended to bring them in line with state law and our current 
procedures. 
Roger Elliott, Assistant Commissioner for Finance, Campus Planning, and Research 
has determined that for the first five-year period the rule is in effect there 
will be no fiscal implications as a result of enforcing or administering the 
rule. TECC has no qualified staff for review of these projects, nor a budget for 
contracting with qualified personnel to conduct the review on their behalf. 
Since House Bill 3530 specifies that SECO may charge the institutions for a 
cost-benefit analysis, SECO and TECC have resolved to contract with a third 
party to conduct the necessary review on behalf of both agencies. This cost is 
passed on to the institutions, and must be incorporated into the overall cost of 
the energy performance project. Consequently, that cost must be repaid through 
energy cost savings, and may preclude additional energy cost reduction measures 
from being implemented. 
Dr. Elliott also has determined that for the first five years the rule is in 
effect the public benefit will be the addition of TECC in the review process 
will result in a more thorough review and validation of energy performance 
contracts. This provides additional assurance to the institutions, the 
Coordinating Board, and the State of Texas that the proposed projects will 
result in the cost savings anticipated, and that they will be adequate to repay 
the cost of implementing the project. There will be no effect on state or local 
government or small businesses. There is no anticipated economic costs to 
persons who are required to comply with the rule as proposed. 
Comments on the amendment may be submitted to Dr. Don W. Brown, Commissioner of 
Higher Education, Texas Higher Education Coordinating Board, P.O. Box 12788, 
Capitol Station, Austin, Texas 78711. 
The amendment is proposed under Texas Education Code, Section 51.927(h), which 
provides the Texas Higher Education Coordinating Board with the authority to 
adopt rules concerning Application for Approval of New Construction and Major 
Repair and Rehabilitation (Energy Conservation Projects). 
There are no other sections or articles affected by the proposed amendment. 

sec.17.45.Energy Conservation Projects.
For the purpose of encouraging repair and rehabilitation projects that improve 
energy conservation in higher education facilities, the following procedure may 
be used to review, for Board approval, energy conservation projects reviewed by 
the State Energy Conservation . <nl>Office and the Texas Energy Coordination 
Council<ol> [Office's Energy Management Center] for funding through a 
performance contract; or energy conservation contracts approved for funding by 
<nl>the State Energy Conservation Office<ol> [SECO/EMC] through the Texas 
LoanSTAR Program. 
(1) The <nl>State Energy Conservation Office and the Texas Energy Coordination 
Council<ol> [Energy Management Center] periodically will submit to the 
Coordinating Board lists of the projects <nl>they have <ol> [it has] reviewed 
for funding through performance contracting<nl>, and the State Energy 
Conservation Office will submit lists of the projects it has<ol> [or] approved 
for funding through the Texas LoanSTAR Program at public institutions of higher 
education, except community or junior colleges. 
(2) (No change.) 
(3) The staff submits the list of projects to the Campus Planning Committee for 
its <nl>consideration<ol> [approval] on behalf of the full Board. 
(4) If the committee approves the list of projects the staff will notify the 
<nl>State Energy Conservation Office and Texas Energy Coordination Council<ol> 
[Energy Management Center] and the institutions whose projects have been 
approved. 
(5) (No change.) 
(6) The Coordinating Board or Campus Planning Committee must approve energy 
conservation performance contracts. However, the Board or Campus Planning 
Committee will consider the review and comment report from the <nl>State Energy 
Conservation Office and the Texas Energy Coordination Council<ol> [Energy 
Management Center] prior to approval. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 24, 1998.
TRD-9813415
James McWhorter
Assistant Commissioner for Administration
Texas Higher Education Coordinating Board
Proposed date of adoption: October 23, 1998
For further information, please call: (512) 483-6162

TITLE 22. EXAMINING BOARDS
PART V. State Board of Dental Examiners
CHAPTER 109.Conduct
SUBCHAPTER I.Fair Dealing
22 TAC sec.109.145
The State Board of Dental Examiners proposes new sec.109.145, concerning 
required display of dental degree on written communications to the public. 
Douglas A. Beran, Executive Director, State Board of Dental Examiners (SBDE), 
has determined for the first five-year period the rule is in effect there will 
be no fiscal implications for local government as a result of enforcing or 
administering the rule 
Mr. Beran has determined that for each year of the first five years the rule is 
in effect the public benefit anticipated as a result of enforcing the rule will 
be communications from a dentist to the public concerning dental services will 
inform the public that the communicator is a dentist. 
The SBDE has determined that the proposed rule will not have an adverse economic 
impact on small businesses as the cost of compliance, if any, will be minimal. 
There is no anticipated impact on local government. 
Comments on the proposal may be submitted to Mei Ling Clendennen, Executive 
Assistant, State Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 800, 
Austin, Texas 78701, (512-463-6400). To be considered, all comments and written 
requests for public hearing must be received by the State Board of Dental 
Examiners on or before October 5, 1998. 
The new rule is proposed under Texas Government Code sec.2001.021 et.seq; Texas 
Civil Statutes, Article 4543sec.2 and 4551d which provide the State Board of 
Dental Examiners with the authority to adopt and promulgate rules consistent 
with the Dental Practice Act. 
The proposed new rule does not affect other statutes, articles, or codes.

sec.109.145. Dental Degree Required on Written Communication to Public. 
A Texas dental licensee, in any professional written communication concerning 
dental services, shall include the dentist's dental degree or the dentist may 
use the words "general dentist", "general dentistry", or an ADA approved dental 
specialty, if the dentist is a specialist in the field designated. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on August 24, 1998.
TRD-9813435
Douglas A. Beran, Ph.D.
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 463-6400

SUBCHAPTER L.Anesthesia and Anesthetic Agents
22 TAC sec.109.171
The State Board of Dental Examiners proposed amendments to sec.109.171, 
concerning the effective date of sec.sec.109.171-109.175.
Douglas A. Beran, Executive Director, State Board of Dental Examiners, has 
determined that for the first five-year period the rule is in effect there will 
be no fiscal implications for state or local government as a result of enforcing 
the rule. 
Mr. Beran has determined that for each year of the first five years the rule is 
in effect the public benefit anticipated as a result of enforcing the rule will 
be that the proposed amendment to sec.109.171 clarifies the effective dates 
amended rules affecting anesthesia procedures. 
There will be no effect on small and large businesses and on persons who are 
required to comply with the rule as proposed. 
Comments on the proposal may be submitted to Mei Ling Clendennen, Executive 
Assistant, State Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 800, 
Austin, Texas 78701, 512-463-6400. To be considered all comments must be 
received by the State Board of Dental Examiners on or before October 5, 1998. In 
addition, a public hearing will be held during the regularly scheduled SBDE 
meeting of November 6, 1998, at 333 Guadalupe, Tower 2, 2nd floor, Room II-225, 
Austin, Texas. 
The amended rule is proposed under Texas Government Code sec.2001.021 et. seq.; 
Texas Civil Statutes, Article 4543 sec.2 and 4551d which provide the State Board 
of Dental Examiners with the authority to adopt and promulgate rules consistent 
with the Dental Practice Act. 
The proposed amended rule does not affect other statutes, articles, or codes.

sec.109.171. Effective Date. 
<nl>Unless specifically provided otherwise, the provisions of rules 109.172, 
109.173, 109.174, and 109.175 that require equipment and/or certifications not 
required by those rules that were in effect on September 1, 1998, shall not be 
enforced until January 1, 2000. <ol>[The effective date of these sections shall 
be July 1, 1988.] 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on August 24, 1998.
TRD-9813440
Douglas A. Beran, Ph.D.
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 463-6400

22 TAC sec.109.172
The State Board of Dental Examiners proposes amendments to sec.109.172, 
concerning definitions. 
Douglas A. Beran, Executive Director, State Board of Dental Examiners, has 
determined that for the first five-year period the rule is in effect there will 
be no fiscal implications for state or local government as a result of enforcing 
the rule. 
Mr. Beran has determined that for each year of the first five years the rule is 
in effect the public benefit anticipated as a result of enforcing the rule will 
be that sec.109.172 clarifies certain definitions relative to administration of 
anesthesia. 
There will be no effect on small and large businesses and on persons who are 
required to comply with the rule as proposed. 
Comments on the proposal may be submitted to Mei Ling Clendennen, Executive 
Assistant, State Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 800, 
Austin, Texas 78701, 512-463-6400. To be considered all comments must be 
received by the State Board of Dental Examiners on or before October 5, 1998. In 
addition, a public hearing will be held during the regularly scheduled SBDE 
meeting of November 6, 1998, at 333 Guadalupe, Tower 2, 2nd floor, Room II-225, 
Austin, Texas. 
The amended rule is proposed under Texas Government Code sec.2001.021 et. seq.; 
Texas Civil Statutes, Article 4543 sec.2 and 4551d which provide the State Board 
of Dental Examiners with the authority to adopt and promulgate rules consistent 
with the Dental Practice Act. 
The proposed amended rule does not affect other statutes, articles, or codes. 

sec.109.172. Definitions. 
The following words and terms, when used in <nl>subchapter L, Anesthesia and 
Anesthetic Agents<ol>[this chapter], shall have the following meanings, unless 
the context clearly indicates otherwise. 
<nl>(1)<ol> Analgesia - the diminution <nl>or elimination of pain<ol>[or 
production of increased tolerance to pain in the conscious patient]. 
<nl>(2)<ol> <nl>Competent - displaying special skill or knowledge derived from 
training and experience. <ol>
<nl>(3)<ol> [Parenteral] Conscious Sedation - a minimally depressed level of 
consciousness that retains the patient's ability to independently and 
continuously maintain an airway and respond appropriately to physical 
stimulation and verbal command, <nl>and that is<ol> produced by a pharmacologic 
or non-pharmacologic method, or a combination thereof. <nl> In accord with this 
particular definition, the drugs and/or techniques used should carry a margin of 
safety wide enough to render unintended loss of consciousness unlikely. Further, 
patients whose only response is reflex withdrawal from repeated painful stimuli 
would not be considered to be in a state of conscious sedation.<ol> 
<nl>(4)<ol> <nl>Continual - repeated regularly and frequently in a steady 
succession. <ol>
<nl>(5)<ol> <nl>Continuous - prolonged without any interruption at any time. 
<ol>
<nl>(6)<ol> [Parenteral] Deep Sedation - <nl> an induced<ol>[A Controlled] state 
of depressed consciousness accompanied by partial loss of protective reflexes, 
including the inability to <nl>continually maintain an airway independently 
and/or <ol>respond purposefully to verbal command, <nl>and is<ol> produced by a 
pharmacological or non-pharmacological method, or a combination thereof. 
<nl>(7)<ol> Direct supervision - the dentist responsible for the 
sedation/anesthesia procedure shall be physically present in the office and 
shall be continuously aware of the patient's physical status and well being. 
<nl>(8)<ol> <nl>Enteral - any technique of administration in which the agent is 
absorbed through the gastrointestinal (GI) tract or oral mucosa (i.e., oral, 
rectal, sublingual). <ol>
<nl>(9)<ol> <nl>Facility - the primary office where a permit holder practices 
dentistry and provides anesthesia services. <ol>
<nl>(10)<ol> <nl>Facility inspection - an on-site inspection to determine if a 
facility is supplied, equipped, staffed, and maintained in a condition to 
support provision of anesthesia services that meet the minimum standard of care; 
may be required by the State Board of Dental Examiners prior to the issuance of 
an anesthetic permit or any time during the term of the permit if the holder of 
or applicant for a permit owns or operates a primary facility or satellite 
facility. <ol>
<nl>(11)<ol> General anesthesia - <nl>an induced<ol>[ A controlled] state of 
unconsciousness accompanied by partial or complete loss of protective reflexes, 
including inability to independently maintain an airway and respond purposefully 
<nl>to physical stimulation or<ol>[to] verbal command, <nl>and is<ol> produced 
by a pharmacological or non-pharmacological method or a combination thereof. 
<nl>(12)<ol> <nl>Immediately available - on-site in the facility and available 
for immediate use.<ol> 
<nl>(13)<ol> <nl>Inhalation - a technique of administration in which a gaseous 
or volatile agent is introduced into the pulmonary tree and whose primary effect 
is due to absorption through the pulmonary bed (e.g. nitrous oxide/oxygen 
sedation). <ol>
<nl>(14)<ol> Local anesthesia - the elimination of sensations, especially pain, 
in one part of the body by regional injection of a drug. 
<nl>(15)<ol> May[or could] - indicates freedom or liberty to follow a 
<nl>reasonable<ol> [suggested] alternative.
<nl>(16)<ol> Must or shall - indicates an imperative need and/or duty; an 
essential or indispensable item; mandatory.
<nl>(17)<ol> Nitrous Oxide/oxygen inhalation conscious sedation - the 
administration by inhalation of a combination of nitrous oxide and oxygen 
producing an altered level of consciousness that retains the patient's ability 
to independently and continuously maintain an airway and respond appropriately 
to physical stimulation and/or verbal command.
<nl>(18)<ol> <nl>Parenteral - a technique of administration in which the drug 
bypasses the gastrointestinal (GI) tract, i.e., intramuscular (IM), intravenous 
(IV), intranasal (IN), submucosal (SM), subcutaneous (SC).<ol>
<nl>(19)<ol> <nl>Patient Physical Status Classification:<ol>
<nl>(A)<ol> <nl> ASA - American Society of Anesthesiologists<ol> 
<nl>(B)<ol> <nl> ASA I - a normal health patient <ol>
<nl>(C)<ol> <nl> ASA II - a patient with mild systemic disease <ol>
<nl>(D)<ol> <nl> ASA III - a patient with severe systemic disease <ol>
<nl>(E)<ol> <nl> ASA IV - a patient with severe systemic disease that is a 
constant threat to life <ol>
<nl>(F)<ol> <nl> ASA V - a moribund patient who is not expected to survive 
without the operation <ol>
<nl>(G)<ol> <nl> ASA VI - a declared brain-dead patient whose organs are being 
removed for donor purposes <ol>
<nl>(H)<ol> <nl> E - emergency operation of any variety (used to modify the ASA 
I - ASA VI). <ol>
<nl>(20)<ol> Personal supervision - the provider responsible for the sedation/ 
anesthesia procedure shall be physically present in the room with the patient at 
all times during the induction and maintenance of the procedure. 
<nl>(21)<ol> <nl>Portability - the ability of a permit holder to provide 
permitted anesthesia services in a location other than a facility or satellite 
facility. <ol>
<nl>(22)<ol> <nl>Satellite facility - an additional office or offices owned or 
operated by the permit holder, or owned or operated by a professional 
organization through which the permit holder practices dentistry, or a licensed 
hospital facility. <ol>
<nl>(23)<ol> Should - indicates the recommended manner to obtain the standard; 
highly desirable. 
<nl>(24)<ol> <nl>Time-oriented anesthesia record - documentation at appropriate 
intervals of drugs, doses and physiologic data obtained during patient 
monitoring. <ol>
<nl>(25)<ol> <nl>Topical Anesthesia - the elimination of sensations, especially 
pain, in one part of the body by the topical application of a drug. <ol>
<nl>(26)<ol> <nl>Transdermal/transmucosal - a technique of administration in 
which the drug is administered by patch or iontophoresis.<ol>
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on August 24, 1998.
TRD-9813441
Douglas A. Beran, Ph.D.
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 463-6400

22 TAC sec.109.173
The State Board of Dental Examiners proposes amendments to sec.109.173, 
concerning minimum standard of care. 
Douglas A. Beran, Executive Director, State Board of Dental Examiners, has 
determined that for the first five-year period the rule is in effect there will 
be no fiscal implications for state or local government as a result of enforcing 
the rule. 
Mr. Beran has determined that for each year of the first five years the rule is 
in effect the public benefit anticipated as a result of enforcing the rule will 
be that sec.109.173 communicates unambiguously that practicing dentists must 
follow generally accepted protocols and/or standards of care for management of 
complications and emergencies and informed consent will be required only where 
there is a reasonable probability of complications from a procedure. 
There will be no effect on small and large businesses and on persons who are 
required to comply with the rule as proposed. 
Comments on the proposal may be submitted to Mei Ling Clendennen, Executive 
Assistant, State Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 800, 
Austin, Texas 78701, 512-463-6400. To be considered all comments must be 
received by the State Board of Dental Examiners on or before October 5, 1998. In 
addition, a public hearing will be held during the regularly scheduled SBDE 
meeting of November 6, 1998, at 333 Guadalupe, Tower 2, 2nd floor, Room II-225, 
Austin, Texas. 
The amended rule is proposed under Texas Government Code sec.2001.021 et. seq.; 
Texas Civil Statutes, Article 4543 sec.2 and 4551d which provide the State Board 
of Dental Examiners with the authority to adopt and promulgate rules consistent 
with the Dental Practice Act.
The proposed amended rule does not affect other statutes, articles, or codes.

sec.109.173. Minimum Standard of Care. 
Each dentist licensed by the [Texas] State Board of Dental Examiners and 
practicing in Texas shall conduct <nl>his/her<ol>[their] practice in a manner 
consistent with that of a reasonable and prudent dentist under the same or 
similar circumstances. Further, each dentist:
(1) (No change.) 
(A)-(D) (No change.) 
(2) Shall maintain and review an initial medical history and 
<nl>perform<ol>limited physical evaluation for all dental patients to wit: 
(A) (No change.) 
(B) The initial limited physical examination <nl>should<ol>[shall]include, but 
shall not necessarily be limited to, blood pressure and pulse/heart rate as may 
be indicated for each patient. 
(3) (No change.) 
(4) Shall, for office emergencies: 
(A)-(B) (No change.) 
(C) provide training to dental office personnel in emergency procedures which 
shall include, but not necessarily be limited to, basic cardiac life support, 
inspection and utilization of emergency equipment in the dental office, and 
office procedures to be followed in the event of an emergency as determined by a 
reasonable and prudent dentist in the same or similar circumstances; <nl> 
and<ol> 
<nl>(D)<ol> <nl> shall adhere to generally accepted protocols and/or standards 
of care for management of complications and emergencies.<ol>
(5) Shall <nl>sucessfully<ol>complete a<nl>current <ol>course in basic 
cardiopulmonary resuscitation [every two years] offered by either the American 
Heart Association or the American Red Cross. 
(6) <nl>Should maintain a written informed consent for all procedures where a 
reasonable possibility of complications from the procedure exists.<ol>[Shall 
obtain an informed consent in all situations where required by law.] 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on August 24, 1998.
TRD-9813442
Douglas A. Beran, Ph.D.
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 463-6400

22 TAC sec.109.174
The State Board of Dental Examiners proposes amendments to sec.109.174, 
concerning sedation, anesthesia permits. 
Douglas A. Beran, Executive Director, State Board of Dental Examiners, has 
determined that for the first five-year period the rule is in effect there will 
be no fiscal implications for state or local government as a result of enforcing 
the rule. 
Mr. Beran has determined that for each year of the first five years the rule is 
in effect the public benefit anticipated as a result of enforcing the rule will 
be that sec.109.174 will assure that the overall quality of anesthesia 
procedures meets the standard of care. 
The effect on small businesses that are required to comply with the rule as 
proposed shall be their staffs remain qualified to meet the standard of care for 
anesthesia procedures or such businesses shall not be authorized by the State 
Board of Dental Examiners to perform anesthesia procedures. The fiscal impact on 
small businesses required to comply with the rule as proposed will be contingent 
upon each business' cost of permits and staff training for the anesthesia 
procedure authorized by the State Board of Dental Examiners and concomitant 
costs associated with each permitted procedure, e.g., equipment and staff. Such 
costs assure a minimum quality of care that is reasonable for the public safety. 
These costs, however, are not so negative as to impact the economic viability of 
a small business. Therefore, the State Board of Dental Examiners has determined 
that compliance with the proposed rule will not have an adverse economic impact 
on small businesses as the cost of compliance will be minimal. 
Comments on the proposal may be submitted to Mei Ling Clendennen, Executive 
Assistant, State Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 800, 
Austin, Texas 78701, 512-463-6400. To be considered all comments must be 
received by the State Board of Dental Examiners on or before October 5, 1998. In 
addition, a public hearing will be held during the regularly scheduled SBDE 
meeting of November 6, 1998, at 333 Guadalupe, Tower 2, 2nd floor, Room II-225, 
Austin, Texas. 
The amended rule is proposed under Texas Government Code sec.2001.021 et. seq.; 
Texas Civil Statutes, Article 4543 sec.2 and 4551d which provide the State Board 
of Dental Examiners with the authority to adopt and promulgate rules consistent 
with the Dental Practice Act. 
The proposed amended rule does not affect other statutes, articles, or codes.

sec.109.174. Sedation/Anesthesia Permit.
(a) The [Texas] State Board of Dental Examiners shall appoint advisory 
consultants for advice and recommendations to the Board on permit requirements, 
applicant and facility approval. 
(b) [From the effective date of these sections, each]<nl> A<ol> dentist licensed 
by the [Texas] State Board of Dental Examiners and practicing in Texas, who 
desires to utilize nitrous oxide/oxygen inhalation conscious sedation, 
parenteral conscious sedation, and/or parenteral deep sedation and general 
anesthesia, must obtain a permit [of authorization] from the [Texas] State Board 
of Dental Examiners for the requested procedure.
<nl>(1)<ol> <nl>A permit may be obtained by completing an application form 
approved by the State Board of Dental Examiners, a copy of which may be obtained 
from the SBDE. <ol>
<nl>(2)<ol> <nl>The application form must be filled out completely and 
appropriate fees paid. <ol>
<nl>(3)<ol> <nl>Prior to issuance of an anesthesia permit the Board may require 
that the applicant undergo a facility inspection or further review of anesthesia 
credentials. The SBDE may direct an Anesthesia Consultant, who has been 
appointed by the Board, to assist in this inspection or review. The applicant 
will be notified in writing if an inspection is required and provided with the 
name of an Anesthesia Consultant who will coordinate the inspection. The 
applicant must make arrangements for completion of the inspection within 180 
days of the date the notice is mailed. An extension of no more than 90 days may 
be granted if the designated Anesthesia Consultant requests one. <ol>
<nl>(4)<ol> <nl>An applicant for a sedation/anesthesia permit must be licensed 
and in good standing with the State Board of Dental Examiners. For purposes of 
Rules 109.171 through 109.175, "good standing" means that a licensee is not 
suspended, whether or not the suspension is probated. Applications from 
licensees who are not in good standing will not be approved.<ol>
(c) Any dentist approved by the [Texas] State Board of Dental Examiners under 
previous rules prior to the effective date of this section for the utilization 
of nitrous oxide/oxygen inhalation conscious sedation, parenteral conscious 
sedation,<nl>or parenteral deep sedation/general anesthesia, except as described 
in subsection (d), shall remain permitted provided that the appropriate fees 
have been paid and that the dentist has a current license.<ol> [or general 
anesthesia may qualify for a new permit.] 
(d) <nl>Once a permit is issued, the State Board of Dental Examiners upon 
payment of required fees shall automatically renew the permit annually unless 
after notice and opportunity for hearing the board finds the permit holder has, 
or is likely to provide anesthesia services in a manner that does not meet the 
minimum standard of care. At such hearing the Board shall consider factors 
including patient complaints, morbidity, mortality, and anesthesia consultant 
recommendations.<ol>[Each holder of an existing permit shall be required to 
complete and submit a new application for the procedure(s) desired within one 
year from the effective date of these sections to the Texas State Board of 
Dental Examiners. If the new permit application is not received within this 
designated period, the prior permit shall be canceled. Each new application 
shall be reviewed to determine if the permit holder meets the "standard of care" 
requirements for the permit requested. If the requirements are met, a new permit 
shall be issued. If the requirements are not met, the permit applicant shall be 
notified and provided an appropriate period, at the discretion of the Board, to 
correct the deficiency.] 
(e) <nl>Annual dental license renewal certificates shall include the annual 
permit renewal, except as provided for in subsection (d) of this section and 
shall be assessed an annual renewal fee of $5.00 payable with the license 
renewal. New permit fees are $28.75 payable with the application for permit.<ol> 
[For new applicants who are otherwise properly qualified, a temporary 
provisional permit may be issued for one year by the Board, based solely upon 
the credentials contained in the application.] 
(f) <nl>Permit Restrictions:<ol>[Prior to or after the issuance of any permit, 
the Texas State Board of Dental Examiners may, at its discretion, require an on-
site office evaluation to determine if all standards of these sections are being 
met.] 
<nl>(1)<ol> <nl>An anesthesia/sedation permit is valid for the dentist's 
facility, if any, as well as any satellite facility. <ol>
<nl>(2)<ol> <nl>Portability of an anesthesia/sedation permit will be granted to 
a dentist who, after January 1, 2000, applies for portability if the dentist is 
granted: <ol>
<nl>(A)<ol> <nl>a deep sedation/general anesthesia permit; or <ol>
<nl>(B)<ol> <nl>an intravenous parenteral conscious sedation permit if training 
for the permit was obtained on the basis of completion of <ol>
<nl>(i)<ol> <nl>a specialty program approved by the Commission on Dental 
Accreditation of the American Dental Association, or <ol>
(ii) a general practice residency, approved by the Commission on Dental 
Accreditation of the American Dental Association, or 
(iii) an advanced education in general dentistry program, approved by the 
Commission on Dental Accreditation of the American Dental Association, or 
(iv) a Continuing Education (CE) program specifically approved by the SBDE. The 
board may approve a graduate of a CE program under this subsection only if the 
applicant can demonstrate administration of intravenous parenteral conscious 
sedation in at least 30 cases that are documented showing provision of 
anesthesia services in keeping with the standard of care as determined by one or 
more of the SBDE's anesthesia consultants; and the applicant establishes that 
the program consisted of 
<nl>(I)<ol> eighty hours of didactic courses; 
<nl>(II)<ol> administration of intravenous parenteral conscious sedation in at 
least 20 cases where the applicant was the anesthesia provider. 
(3) When anesthesia services are provided by a dentist at a location other than 
a facility or a satellite facility, the dentist shall strictly adhere to all 
rules of the State Board of Dental Examiners which may apply. The dentist shall 
ascertain that the location is supplied, equipped, staffed and maintained in a 
condition to support provision of anesthesia services that meet the standard of 
care. 
(4) A dentist holding a permit to administer parenteral conscious sedation on 
the effective date of this rule who is qualified by training or experience to 
administer intravenous parenteral conscious sedation anesthesia on a portable 
basis, and who desires to do so must file with the State Board of Dental 
Examiners proof of completion of: 
<nl>(A)<ol> a specialty program approved by the Commission on Dental 
Accreditation of the American Dental Association, or 
<nl>(B)<ol> a general practice residency approved by the Commission on Dental 
Accreditation of the American Dental Association, or
<nl>(C)<ol> an advanced education in a general dentistry program approved by the 
Commission on Dental Accreditation of the American Dental Association, or 
<nl>(D)<ol> a Continuing Education program and administration of intravenous 
parenteral conscious sedation in at least 30 cases that are documented showing 
provision of anesthesia services in keeping with the standard of care as 
determined by one or more of the SBDE's anesthesia consultants.
<nl>(E)<ol> The records of all dentists permitted to administer parenteral 
conscious sedation will be annotated showing whether portability status is 
granted. 
<nl>(F)<ol> Any applicant whose request for portability is not granted on the 
basis of the application will be provided an opportunity for hearing pursuant to 
Texas Government Code, Section 2001 et.seq. 
(5) A dentist holding a permit to administer parenteral deep sedation/general 
anesthesia on the effective date of this rule who desires to provide anesthesia 
on a portable basis must file with the State Board of Dental Examiners a request 
for a portability designation.
<nl>(A)<ol> The records of all dentists permitted to administer parenteral deep 
sedation/general anesthesia will be annotated showing whether portability status 
is granted.
<nl>(B)<ol> Any applicant whose request for portability status is not granted on 
the basis of the application will be provided an opportunity for hearing 
pursuant to Texas Government Code, Section 2001 et.seq.
(6) The Board may elect to issue a temporary anesthesia/sedation permit which 
will expire on a date certain. A full anesthesia/sedation permit may be issued 
after the dentist has complied with requests of the Board which may include, but 
shall not be limited to, review of the dentist's anesthetic technique, facility 
inspection and/or review of patient records to ascertain that the minimum 
standard of care is being met. If a full permit is not issued, the temporary 
permit will expire on the stated date, and no further action by the State Board 
of Dental Examiners will be required, and no hearing will be conducted. 
(g) <nl>Educational/Professional requirements for sedation/anesthesia 
permits:<ol> [Once a permit is issued, the Texas State Board of Dental Examiners 
shall automatically renew the permit annually unless the holder of said permit 
is informed by the Board that an evaluation of the permit is required. Prior to 
an evaluation of an existing permit, the Board shall consider factors to include 
patient complaints, morbidity, mortality, and advisory consultant 
recommendations.] 
(1) Nitrous Oxide/Oxygen Inhalation Conscious Sedation 
<nl>(A)<ol> To administer nitrous oxide/oxygen inhalation conscious sedation, 
the dentist must satisfy one of the following criteria:
<nl>(i)<ol> must have completed training consistent with that described in Part 
I or Part III of the American Dental Association (ADA) Guidelines for Teaching 
the Comprehensive Control of Pain and Anxiety in Dentistry; or 
<nl>(ii)<ol> must have completed an ADA accredited post-doctoral training 
program which affords comprehensive and appropriate training necessary to 
administer and manage nitrous oxide/oxygen inhalation conscious sedation. 
<nl>(B)<ol> The following shall apply to the administration of nitrous 
oxide/oxygen inhalation conscious sedation in the dental office: 
<nl>(i)<ol> provision of nitrous oxide/oxygen inhalation conscious sedation by 
another duly qualified dentist or physician anesthesiologist requires the 
operating dentist and his/her clinical staff to maintain current expertise in 
Basic Life Support (BLS); 
<nl>(ii)<ol> when a Certified Registered Nurse Anesthetist (CRNA) is permitted 
to function under the supervision of a dentist, in the dental office, provision 
of nitrous oxide/oxygen inhalation conscious sedation by a CRNA shall require 
the operating dentist to have completed training in nitrous oxide/oxygen 
inhalation conscious sedation, and to be permitted for its utilization. 
(2) Parenteral Conscious Sedation
<nl>(A)<ol> To administer parenteral conscious sedation, the dentist must 
satisfy one of the following criteria: 
<nl>(i)<ol> completion of a comprehensive training program in parenteral 
conscious sedation that satisfies the requirement described in Part III of the 
American Dental Association (ADA) Guidelines for Teaching the Comprehensive 
Control of Pain and Anxiety in Dentistry at the time training was commenced; or 
<nl>(ii)<ol> completion of an ADA accredited post-doctoral training program 
which affords comprehensive and appropriate training necessary to administer and 
manage parenteral conscious sedation. 
<nl>(B)<ol> The following shall apply to the administration of parenteral 
conscious sedation in the dental office: 
<nl>(i)<ol> provision of parenteral conscious sedation by another duly qualified 
dentist or physician anesthesiologist requires the operating dentist and his/her 
clinical staff to maintain current expertise in Basic Life Support (BLS); 
<nl>(ii)<ol> when a Certified Registered Nurse Anesthetist (CRNA) is permitted 
to function under the supervision of a dentist, in the dental office, provision 
of parenteral conscious sedation by a CRNA shall require the operating dentist 
to have completed training in parenteral conscious sedation, and to be permitted 
for its utilization;
<nl>(iii)<ol> a dentist administering parenteral conscious sedation must 
document current, successful completion every three years of an advanced 
emergency procedures course approved by the State Board of Dental Examiners or 
an Advanced Cardiac Life Support (ACLS) course, or a Pediatric Advanced Life 
Support (PALS) or age appropriate equivalent course. 
(3) Parenteral Deep Sedation/General Anesthesia 
<nl>(A)<ol> To administer parenteral deep sedation/general anesthesia, the 
dentist must satisfy one of the following criteria: 
<nl>(i)<ol> completion of an advanced training program in anesthesia and related 
subjects beyond the undergraduate dental curriculum that satisfies the 
requirements described in Part II of the American Dental Association (ADA) 
Guidelines for Teaching the Comprehensive Control of Pain and Anxiety in 
Dentistry at the time training was commenced; or, 
<nl>(ii)<ol> completion of an ADA accredited post-doctoral training program 
which affords comprehensive and appropriate training necessary to administer and 
manage parenteral deep sedation/general anesthesia.
<nl>(B)<ol> The following shall apply to the administration of parenteral deep 
sedation/general anesthesia in the dental office:
<nl>(i)<ol> provision of parenteral deep sedation/general anesthesia by another 
duly qualified dentist or physician anesthesiologist requires the operating 
dentist and his/her clinical staff to maintain current expertise in Basic Life 
Support (BLS); 
<nl>(ii)<ol> when a Certified Registered Nurse Anesthetist (CRNA) is permitted 
to function under the supervision of a dentist, in the dental office, provision 
of parenteral deep sedation/general anesthesia by a CRNA shall require the 
operating dentist to have completed training in parenteral deep sedation/general 
anesthesia, and to be permitted for its utilization;
<nl>(iii)<ol> a dentist administering parenteral deep sedation/general 
anesthesia must document current, successful completion every three years of an 
advanced emergency procedures course approved by the State Board of Dental 
Examiners or an Advanced Cardiac Life Support (ACLS) course, or a Pediatric 
Advanced Life Support (PALS) or age appropriate equivalent course. 
[(h) Annual dental license renewal certificates shall include the annual permit 
renewal, except as provided for in (g) above, and shall be assessed an annual 
renewal fee of $5.00 payable with the license renewal beginning March 1 and 
thereafter. New permit issuances will be charged a $25. fee, payable with the 
application for permit, beginning March 1, 1992.]
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on August 24, 1998.
TRD-9813443
Douglas A. Beran, Ph.D.
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 463-6400

22 TAC sec.109.175
The State Board of Dental Examiners proposes amendments to sec.109.175, 
concerning permit requirements and clinical provisions.
Douglas A. Beran, Executive Director, State Board of Dental Examiners, has 
determined that for the first five-year period the rule is in effect there will 
be no fiscal implications for state or local government as a result of enforcing 
the rule. 
Mr. Beran has determined that for each year of the first five years the rule is 
in effect the public benefit anticipated as a result of enforcing the rule will 
be that sec.109.175 will assure that the overall quality of anesthesia 
procedures meets the standard of care. 
The effect on small businesses that are required to comply with the rule as 
proposed shall be their staffs remain qualified to meet the standard of care for 
anesthesia procedures or such businesses shall not be authorized by the State 
Board of Dental Examiners to perform anesthesia procedures. The fiscal impact on 
small businesses required to comply with the rule as proposed will be contingent 
upon each business' cost of permits and staff training for the anesthesia 
procedure authorized by the State Board of Dental Examiners and concomitant 
costs associated with each permitted procedure, e.g., equipment and staff. Such 
costs assure a minimum quality of care that is reasonable for the public safety. 
These costs, however, are not so negative as to impact the economic viability of 
a small business. Therefore, the State Board of Dental Examiners has determined 
that compliance with the proposed rule will not have an adverse economic impact 
on small businesses as the cost of compliance will be minimal. 
Comments on the proposal may be submitted to Mei Ling Clendennen, Executive 
Assistant, State Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 800, 
Austin, Texas 78701, 512-463-6400. To be considered all comments must be 
received by the State Board of Dental Examiners on or before October 5, 1998. In 
addition, a public hearing will be held during the regularly scheduled SBDE 
meeting of November 6, 1998, at 333 Guadalupe, Tower 2, 2nd floor, Room II-225, 
Austin, Texas. 
The amended rule is proposed under Texas Government Code sec.2001.021 et. seq.; 
Texas Civil Statutes, Article 4543 sec.2 and 4551d which provide the State Board 
of Dental Examiners with the authority to adopt and promulgate rules consistent 
with the Dental Practice Act.
The proposed amended rule does not affect other statutes, articles, or codes.

sec.109.175. Permit Requirements<nl>and Clinical Provisions<ol>. 
(a) Nitrous Oxide/oxygen inhalation conscious sedation. To induce and maintain 
this type of conscious sedation on patients having dental/oral and maxillofacial 
surgical procedures in the State of Texas, the following requirements must be 
met: 
(1) Professional requirements. 
(A) <nl>Each dentist wishing to utilize this technique must be permitted by the 
State Board of Dental Examiners (SBDE) to deliver nitrous oxide/oxygen conscious 
sedation after having met the Education Requirements as detailed in rule 109.174 
(g)(1) of this chapter (relating to Sedation/Anesthesia Permit).<ol>[Each 
dentist wishing to utilize this technique must produce satisfactory evidence of 
completion of a didactic and clinical course of instruction in this technique. 
Such courses of instruction shall:] 
[(i) be directed by qualified instructors with advanced education in 
comprehensive pain control and with broad clinical experience in this 
technique;] 
[(ii) include a minimum of four hours of didactic work in pharmacodynamics of 
nitrous oxide/oxygen inhalation conscious sedation;] 
[(iii) include a minimum of six hours of clinical experience under personal 
supervision.] 
(B) <nl>Nitrous oxide/oxygen inhalation conscious sedation shall be induced and 
maintained by a dentist licensed by the State of Texas and practicing in Texas, 
a physician anesthesiologist licensed by the Texas State Board of Medical 
Examiners, or a Certified Registered Nurse Anesthetist (CRNA) licensed in 
Texas.<ol> [Each dentist must produce satisfactory evidence of completion of a 
continuing education course in the nitrous oxide oxygen inhalation/ conscious 
sedation which includes the prevention and management of emergencies in the 
dental office; or,] 
[(C) Each dentist must have successfully completed qualifications governing the 
use of parenteral conscious sedation as noted in subsection (b) of this section 
or deep sedation/general anesthesia as noted in subsection (c) of this section.] 
(2) Standard of care requirements. <nl>Each dentist must maintain the minimum 
standard of care as detailed in rule 109.173 of this chapter (relating to 
Minimum Standard of Care), and shall in addition: <ol> 
(A) <nl>adhere to the clinical requirements as detailed in subsection(a)(3) of 
this section;<ol> [Each dentist must maintain the minimum standard of care as 
noted in 109.173 of this title (relating to Minimum Standard of Care).] 
(B) <nl>maintain under continuous direct supervision auxiliary personnel who 
shall be capable of reasonably assisting in procedures, problems, and 
emergencies incident to the use of nitrous oxide/oxygen inhalation conscious 
sedation.<ol> [Each dentist shall induce, monitor, and provide continuous 
personal supervision of the inhalation conscious sedation procedure, or the 
dentist shall induce and may delegate under direct supervision, as defined in 
Rule 109.172, the monitoring of the nitrous oxide inhalation conscious sedation 
procedure to a dental auxiliary who has been certified by the Board. 
Certification is obtained by successful completion of a written examination 
offered by the Board on said subject.] 
(C) maintain current certification in basic cardiopulmonary resuscitation for 
the assistant staff by having them pass a course sponsored by the American Heart 
Association or the American Red Cross; and 
(D) not allow a nitrous oxide/oxygen inhalation conscious sedation procedure to 
be performed in his/her office by a Certified Registered Nurse Anesthetist 
(CRNA) unless the dentist holds a permit issued by the State Board of Dental 
Examiners for the procedure being performed.
(3) Clinical Requirements. Each dentist must meet the following clinical 
requirements for utilization of nitrous oxide/oxygen inhalation conscious 
sedation: 
<nl>(A)<ol> Patient Evaluation. Patients subjected to nitrous oxide/oxygen 
inhalation conscious sedation must be suitably evaluated prior to the start of 
any sedative procedure. In healthy or medically stable individuals (ASA I, II), 
this may be simply a review of their current medical history and medication use. 
However, with individuals who may not be medically stable or who have a 
significant health disability (ASA III, IV) consultation with their primary care 
physician or consulting medical specialist regarding potential procedure risk 
should be considered. 
<nl>(B)<ol> Pre-Procedure preparation, informed consent: 
<nl>(i)<ol> the patient and/or guardian must be advised of the procedure 
associated with the delivery of the nitrous oxide/oxygen inhalation conscious 
sedation. 
<nl>(ii)<ol> the inhalation equipment must be evaluated for proper operation and 
delivery of inhalation agents prior to use on each patient; 
<nl>(iii)<ol> determination of adequate oxygen supply must be completed prior to 
use with each patient; 
<nl>(iv)<ol> baseline vital signs should be obtained at the discretion of the 
operator depending on the medical status of the patient and the nature of the 
procedure to be performed. 
<nl>(C)<ol> Personnel and Equipment Requirements: 
<nl>(i)<ol> in addition to the dentist, at least one member of the assistant 
staff should be present during the administration of nitrous oxide/oxygen 
inhalation conscious sedation in non-emergency situations; 
<nl>(ii)<ol> the inhalation equipment must have a fail-safe system that is 
appropriately checked and calibrated; 
<nl>(iii)<ol> if nitrous oxide and oxygen delivery equipment capable of 
delivering less than 25% oxygen is used, an in-line oxygen analyzer must be 
utilized; 
<nl>(iv)<ol> the equipment must have an appropriate nitrous oxide/oxygen 
scavenging system. 
<nl>(v)<ol> regardless of the sedation/anesthesia technique, the ability of the 
provider and/or the facility to deliver positive pressure oxygen must be 
maintained. 
<nl>(D)<ol> Monitoring and Documentation: 
<nl>(i)<ol> maintain personal supervision of the patient during induction of the 
nitrous oxide/oxygen inhalation conscious sedation procedure and during 
maintenance of nitrous oxide/oxygen inhalation conscious sedation for such a 
period of time necessary to establish pharmacologic and physiologic vital sign 
stability. The dentist may delegate under direct supervision, as defined in Rule 
109.172 of this chapter (relating to Definitions), the monitoring of the nitrous 
oxide/oxygen inhalation conscious sedation procedure to a dental auxiliary who 
has been certified to monitor the administration of nitrous oxide/oxygen 
inhalation conscious sedation by the State Board of Dental Examiners. 
Certification is obtained by successful completion of a written examination 
offered by the State Board of Dental Examiners on said subject. 
<nl>(ii)<ol> individuals present during administration should be documented; 
<nl>(iii)<ol> maximum concentration administered must be documented. 
<nl>(E)<ol> Recovery and Discharge: 
<nl>(i)<ol> recovery from nitrous oxide/oxygen inhalation conscious sedation, 
when used alone, should be relatively quick, requiring only that the patient 
remain in an operatory chair as needed; 
<nl>(ii)<ol> patients who have unusual reactions to nitrous oxide/oxygen 
inhalation conscious sedation should be assisted and monitored either in an 
operatory chair or recovery room until stable for discharge; 
<nl>(iii)<ol> the dentist must determine that the patient is appropriately 
responsive prior to discharge. 
<nl>(F)<ol> Emergency Management. The dentist, personnel and facility must be 
prepared to treat emergencies that may arise from the administration of nitrous 
oxide/oxygen inhalation conscious sedation. 
(b) Parenteral conscious sedation intravenous (IV), intramuscular (IM), 
subcutaneous (SC), submucosal (SM), <nl>intranasal (IN)<ol> To induce and 
maintain this type of conscious sedation on patients having dental/oral and 
maxillofacial surgical procedures in the State of Texas, the following 
requirements must be met: 
(1) <nl>Professional Requirements:<ol> [parenteral conscious sedation shall be 
induced and maintained by a dentist licensed by the State of Texas and 
practicing in Texas, a physician anesthesiologist licensed by the Texas State 
Board of Medical Examiners, or a Certified Registered Nurse Anesthetist licensed 
in Texas (see paragraph (3) (G) of this subsection).
(A) each dentist wishing to utilize these techniques must be permitted by the 
State Board of Dental Examiners (SBDE) to deliver parenteral conscious sedation 
after having met the educational requirements as detailed in Rule 109.174(g)(2) 
of this chapter (relating to Sedation/Anesthesia Permit). 
(B) parenteral conscious sedation shall be induced and maintained by a dentist 
licensed by the State of Texas and practicing in Texas, a physician 
anesthesiologist licensed by the Texas State Board of Medical Examiners, or a 
Certified Registered Nurse Anesthetist (CRNA) licensed in Texas. 
(2) <nl>Standard of Care Requirements. Each dentist must maintain the minimum 
standard of care as detailed in Rule 109.173 of this chapter (relating to the 
Minimum Standard of Care) and shall in addition: <ol>[ Professional requirements 
are as follows:] 
(A) <nl>adhere to the clinical requirements as detailed in subsection (b)(3) of 
this section;<ol>[has satisfactorily completed an intensive course that meets 
the "Guidelines for Teaching the Comprehensive Control of Pain and Anxiety in 
Dentistry" published by the American Dental Association Council on Dental 
Education for the parenteral conscious sedation technique requested; or] 
(B) <nl>maintain a written informed parenteral conscious sedation consent for 
each dental patient on whom each procedure is performed; such consent shall 
specify that the risks related to the procedure include cardiac arrest, brain 
injury and death;<ol>[has satisfactorily completed an approved graduate program 
by the Commission on Dental Accreditation of the American Dental Association 
where training to competency in parenteral conscious sedation is a minimum 
standard required in the training guidelines (oral and maxillofacial surgery, 
pediatric dentistry, periodontics, and some general practice residencies); or] 
(C) <nl>maintain a time oriented, written anesthetic record which shall record 
dosages of anesthetic agents utilized and which shall include physiologic vital 
sign monitoring during the course of the procedure;<ol>[has satisfactorily 
completed qualifications governing the use of general anesthesia.
(D) maintain under continuous personal supervision auxiliary personnel who shall 
be capable of reasonably assisting in procedures, problems, and emergencies 
incident to the use of parenteral conscious sedation; 
(E) maintain current certification in basic cardiopulmonary resuscitation for 
the assistant staff by having them pass a course sponsored by the American Heart 
Association or the American Red Cross.
(F) not allow a parenteral conscious sedation procedure to be performed in 
his/her office by a Certified Registered Nurse Anesthetist (CRNA) unless the 
dentist holds a permit issued by the State Board of Dental Examiners for the 
procedure being performed. 
(3) <nl>Clinical Requirements. Each dentist must meet the following clinical 
requirements for utilization of parenteral conscious sedation:<ol> [Standard of 
care requirements. Each dentist shall utilize the following standard of care in 
addition to the minimum standards noted in section 109.173 of this title 
(relating to Minimum Standard of Care) for each parenteral conscious sedation 
procedure:] 
(A) <nl>Patient Evaluation. Patients subjected to parenteral conscious sedation 
must be suitably evaluated prior to the start of any sedative procedure. In 
healthy or medically stable individuals (ASA I, II) this may be simply a review 
of their current medical history and medication use. However, with individuals 
who may not be medically stable or who have a significant health disability (ASA 
III, IV) consultation with their primary care physician or consulting medical 
specialist regarding potential procedure risk or special monitoring requirements 
should be considered.<ol>[maintain an informed conscious sedation consent by 
each dental patient on whom each procedure is performed, which consent shall 
specify that the risks related to the procedure include brain damage and death;] 
(B) <nl>Pre-procedure preparation, informed consent:<ol>[maintain an adequate 
written sedation record which shall include physiologic vital sign monitoring 
during the course of the procedure;]
(i) the patient and/or guardian must be advised of the procedure associated with 
the delivery of any sedative agents and the appropriate informed consent should 
be obtained; 
(ii) if inhalation equipment is used in conjunction with parenteral conscious 
sedation, the equipment must be evaluated for proper operation and delivery of 
inhalation agents prior to use on each patient; 
(iii) determination of adequate oxygen supply must be completed prior to use 
with each patient; 
(iv) baseline vital signs should be obtained; 
(v) pre-treatment physical evaluation must be performed as deemed appropriate; 
(vi) specific dietary restrictions must be delineated based on the technique 
used and patient's physical status; 
(vii) appropriate verbal or written instructions regarding the procedure must be 
given to the patient and/or guardian; 
(viii) an intravenous line must be established and secured throughout a 
procedure utilizing an intravenous conscious sedation technique and should be 
maintained with other parenteral conscious sedation techniques when the 
patient's physical or medical condition warrants, except as provided in 
subsection (b)(3)(F) of this section. 
(C) <nl>Personnel Requirements and Equipment:<ol> [maintain continuous direct 
supervision of the sedation procedure and patient vital sign monitoring during 
the course of the procedure;] 
(i) during the administration of parenteral conscious sedation the dentist and 
at least one member of the assistant staff who is currently competent in Basic 
Life Support (BLS) must be present; 
(ii) any inhalation equipment utilized in conjunction with parenteral conscious 
sedation must have a fail safe system that is appropriately checked and 
calibrated; 
(iii) if nitrous oxide and oxygen delivery equipment capable of delivering less 
than 25% oxygen is used, an in-line oxygen analyzer must be utilized; 
(iv) the inhalation equipment must have an appropriate nitrous oxide/oxygen 
scavenging system; 
(v) regardless of the sedation/anesthesia technique, the ability of the provider 
and/or the facility to deliver positive pressure oxygen must be maintained. 
(D) <nl>Monitoring and Documentation. Maintain personal supervision of the 
patient during the induction of parenteral conscious sedation and during 
maintenance of parenteral conscious sedation for a period of time necessary to 
establish pharmacologic and physiologic vital sign stability. When a Certified 
Registered Nurse Anesthetist (CRNA) provides the parenteral conscious sedation 
care, he/she shall be under the direct supervision of the dentist in the dental 
office. Delegation of personal supervision may occur if a second dentist or 
physician anesthesiologist is delivering the anesthesia care.<ol>[maintain 
current certification in basic cardiopulmonary resuscitation for the assistant 
staff by having them pass a course sponsored by the American Heart Association 
or the American Red Cross;]
(i) Oxygenation. Color of mucosa, skin or blood shall be continually evaluated. 
Oxygen saturation shall be evaluated continuously by pulse oximetry. 
(ii) Ventilation. Must perform observation of chest excursions and/or 
auscultation of breath sounds. 
(iii) Circulation. 
<nl>(I)<ol> Shall take and record blood pressure and pulse continually at least 
every 15 minutes; 
<nl>(II)<ol> Shall perform continuous EKG monitoring of all patients whose 
physical status classification is ASA III or ASA IV throughout the procedure, or 
when the patients medical condition warrants. 
(iv) Documentation. A written time-oriented anesthetic record must be 
maintained. Individuals present during the administration of parenteral 
conscious sedation should be documented. 
(E) <nl>Recovery and Discharge.<ol> [in utilizing parenteral conscious sedation 
via an intravenous (IV) route of administration, the dentist shall:] 
<nl>(i)<ol> <nl>oxygen and suction equipment must be immediately available in 
the recovery area and/or operatory;<ol>[maintain personal supervision of the 
patient during the induction of conscious sedation and for a period of time 
necessary to establish pharmacologic and physiologic vital sign stability. When 
a certified registered nurse anesthetist (CRNA) provides the conscious sedation 
care, he/she shall be under the direct supervision of the dentist. Delegation of 
personal supervision may occur if a second dentist or anesthesiologist is 
delivering the anesthesia care.] 
<nl>(ii)<ol> <nl>continual monitoring of vital signs when the anesthetic is no 
longer being administered; i.e., the patient must have continuous supervision 
until oxygenation, ventilation and circulation are stable and the patient is 
appropriately responsive for discharge from the facility;<ol>[utilize visual and 
mechanical methods for vital sign monitoring which shall include, but shall not 
necessarily be limited to, pulse rate, patient color texture, blood pressure, 
respiration, blood and tissue oxygenation. Mechanical monitoring shall include a 
minimum of pulse oximetry;
(iii) the dentist must determine and provide for documentation that oxygenation, 
ventilation, circulation, activity, skin color and level of consciousness are 
appropriate and stable prior to discharge;
<nl>(iv)<ol> <nl>must provide explanation and documentation of postoperative 
instructions to patient and/or a responsible adult at time of discharge; <ol>
(v) the dentist must determine that the patient has met discharge criteria prior 
to leaving the office. 
(F) <nl>Special situations include multiple/combination techniques and types of 
special patients. In selected circumstances, parenteral conscious sedation may 
be utilized without establishing an indwelling intravenous line. These 
circumstances include sedation for very brief procedures; young children managed 
entirely by non-intravenous techniques; or the establishment of intravenous 
access after sedation has been induced due to poor patient cooperation. Vital 
sign monitoring and IV access during special situations should in as far as 
possible adhere to generally accepted standards of care. When these situations 
occur, the dentist responsible for administering parenteral conscious sedation 
should document the reasons preventing the recommended preoperative or 
intraoperative management.<ol>[maintain direct supervision of auxiliary 
personnel who shall be capable of reasonably assisting in procedures, problems, 
and emergencies incident to the use of parenteral conscious sedation; and]
(G) <nl>Emergency Management.<ol>[not allow a parenteral conscious sedation 
procedure to be performed in his/her office by a certified registered nurse 
anesthetist (CRNA) unless the dentist holds a permit for the procedure being 
performed issued by the Texas State Board of Dental Examiners.
(i) the anesthesia permit holder/provider is responsible for the anesthetic 
management, adequacy of the facility and treatment of emergencies associated 
with the administration of parenteral conscious sedation, including immediate 
access to pharmacologic antagonists and equipment for establishing a patent 
airway and providing positive pressure ventilation with oxygen; 
(ii) advanced airway equipment, resuscitation medications must be available. 
(c) Parenteral deep sedation and/or general anesthesia. To induce and 
maintain<nl>parenteral<ol>deep sedation/general anesthesia on patients having 
dental/oral and maxillofacial surgical procedures in the State of Texas, the 
following requirements must be met: 
(1) <nl>Professional Requirements:<ol> [deep sedation/general anesthesia shall 
be induced and maintained by a dentist licensed by the State of Texas and 
practicing in Texas, a physician anesthesiologist licensed by the Texas State 
Board of Medical Examiners, or a certified registered nurse anesthetist licensed 
in Texas. (see paragraph (3) (G) of this subsection).
(A) Each dentist wishing to utilize either of these techniques must be permitted 
by the State Board of Dental Examiners (SBDE) to deliver parenteral deep 
sedation and/or general anesthesia after having met the education requirements 
as detailed in rule 109.174 (g)(3) of this chapter (relating to 
Sedation/Anesthesia Permit). 
(B) Parenteral deep sedation/general anesthesia shall be induced and maintained 
by a dentist licensed by the State of Texas and practicing in Texas, a physician 
anesthesiologist licensed by the Texas State Board of Medical Examiners, or a 
Certified Registered Nurse Anesthetist (CRNA) licensed in Texas. 
(2) <nl>Standard of care requirements. Each dentist must maintain the minimum 
standard of care as detailed in rule 109.173 of this chapter (relating to 
Minimum Standard of Care) and shall in addition: <ol>[ professional requirements 
are as follows] 
(A) <nl>adhere to the clinical requirements as detailed in subsection (c)(3) of 
this section;<ol>[has completed a minimum of one year of advanced training in 
anesthesia and related academic subjects beyond the undergraduate dental school 
level in a training program as described in Part II of the "Guidelines for 
Teaching the Comprehensive Control of Pain and Anxiety in Dentistry" of the 
American Dental Association Council on Dental Education; or] 
(B) <nl>maintain a written parenteral deep sedation and/or general anesthesia 
consent for each dental patient on whom each procedure is performed, such 
consent shall specify that the risks related to the procedure include cardiac 
arrest, brain injury and death:<ol>[has completed an approved graduate program 
by the Commission on Dental Accreditation of the American Dental Association 
where training to competency in general anesthesia is a minimum standard in the 
training guidelines and maintains an equivalency to one year of anesthesia 
training (oral and maxillofacial surgery); or]
(C) <nl>maintain a time oriented, written anesthetic record which shall record 
dosages of anesthetic agents utilized and shall include physiologic vital sign 
monitoring during the course of the procedure;<ol>[has completed the 
requirements for admission to and has passed the fellowship exam in the American 
Dental Society of Anesthesiology.] 
(D) maintain under continuous direct supervision a minimum of two auxiliary 
personnel who shall be capable of reasonably assisting in procedures, problems, 
and emergencies incident to the use of parenteral deep sedation and/or general 
anesthesia;<nl> <ol>
(E) maintain current certification in basic cardiopulmonary resuscitation for 
the assistant staff by having them pass a course sponsored by the American Heart 
Association or the American Red Cross;
(F) not allow a parenteral deep sedation and/or general anesthesia procedure to 
be performed in his/her office by a Certified Registered Nurse Anesthetist 
(CRNA) unless the dentist holds a permit issued by the State Board of Dental 
Examiners for the procedure being performed.
(3) <nl>Clinical Requirements. Each dentist must meet the following clinical 
requirements for utilization of parenteral deep sedation and/or general 
anesthesia:<ol> [Standard of care requirements. Each dentist shall utilize the 
following standard of care in addition to the minimum standards noted in 109.173 
of this title (relating to Minimum Standard of Care):] 
(A) <nl>Patient Evaluation. Patients subjected to parenteral deep 
sedation/general anesthesia must be suitably evaluated prior to the start of any 
sedative/anesthetic procedure. In healthy or medically stable individuals (ASA 
I, II) this may be simply a review of their current medical history and 
medication use. However, with individuals who may not be medically stable or who 
have a significant health disability (ASA III, IV), consultation with their 
primary care physician or consulting medical specialist regarding potential 
procedure risk or special monitoring should be considered.<ol> [maintain an 
informed deep sedation/general anesthesia consent by each dental patient on whom 
this technique is performed, which consent shall specify that the risks related 
to the procedure include brain damage and death;] 
(B) <nl>Pre-Procedure preparation, informed consent:<ol>[maintain an adequate 
written anesthesia record which shall include, but shall not necessarily be 
limited to, physiologic vital signs and all medications administered during the 
course of the procedure;] 
(i) the patient and/or guardian must be advised of the procedure associated with 
the delivery of any sedative agents and the appropriate informed consent should 
be obtained; 
(ii) if inhalation equipment is used in conjunction with parenteral deep 
sedation and/or general anesthesia, the equipment must be evaluated for proper 
operation and delivery of inhalation agents prior to use on each patient; 
(iii) determination of adequate oxygen supply must be completed prior to use 
with each patient; 
(iv) baseline vital signs should be obtained; 
(v) pre-treatment physical evaluation should be performed as deemed appropriate; 
(vi) specific dietary restrictions must be delineated based on technique used 
and patient's physical status; 
(vii) appropriate verbal or written instructions regarding the procedure must be 
given to the patient and/or guardian; 
(viii) an intravenous line which is secured throughout the procedure must be 
established, except as provided in subsection (c)(3)(F) of this section. 
(C) <nl>Personnel and Equipment Requirements:<ol>[maintain personal supervision 
of the patient during the induction and maintenance of the anesthesia. When a 
certified registered nurse anesthetist (CRNA) provides the deep 
sedation/anesthesia care, he/she shall be under the direct supervision of the 
dentist. Delegation of personal supervision may occur if a second dentist or 
anesthesiologist is delivering the deep sedation/anesthesia care. Vital sign 
monitoring shall utilize visual and mechanical methods which shall include, but 
shall not necessarily be limited to, pulse rate, patient color/texture, blood 
pressure, respiration, blood and tissue oxygenation, and heart rhythm. 
Mechanical monitoring shall include a minimum of pulse oximetry and an 
electrocardioscope.
(i) a provider permitted to administer parenteral deep sedation and/or general 
anesthesia shall be designated to be in charge of the administration of 
anesthesia care; 
(ii) two additional individuals who are currently certified in basic 
cardiopulmonary resuscitation or its equivalent, one of whom is trained in 
patient monitoring shall be present for the delivery of anesthesia care; 
(iii) when the same individual administering the parenteral deep sedation and/or 
general anesthesia is performing the dental/oral and maxillofacial procedure, 
one of the additional two individuals present for the delivery of anesthesia 
care must monitor the patient and record required information on the anesthesia 
record; 
(iv) equipment suitable to provide advanced airway management and advanced life 
support should be on premises and available for use. 
(v) any inhalation equipment utilized in conjunction with parenteral deep 
sedation/general anesthesia must have a fail safe system that is appropriately 
checked and calibrated.
(vi) if nitrous oxide/oxygen delivery equipment capable of delivering less than 
25% oxygen is used, an in-line oxygen analyzer must be utilized. 
(vii) the inhalation equipment must have an appropriate nitrous oxide/oxygen 
scavenging system.
(viii) regardless of the sedation/anesthesia technique, the ability of the 
provider and/or the facility to deliver positive pressure oxygen must be 
maintained.
(D) <nl>Monitoring and Documentation. Maintain personal supervision of the 
patient during the induction and maintenance of parenteral deep sedation and/or 
general anesthesia and during maintenance of parenteral deep sedation and/or 
general anesthesia for a period of time necessary to establish pharmacologic and 
physiologic vital sign stability. When a Certified Registered Nurse Anesthetist 
(CRNA) provides the anesthesia care, he/she shall be under the direct 
supervision of the dentist in the dental office. Delegation of personal 
supervision may occur if a second dentist or physician anesthesiologist is 
delivering the anesthesia care.<ol> [maintain original certification in advanced 
cardiac life support from a course sponsored by the American Heart Association. 
The dentist shall require his/her assistant staff to maintain current 
certification in basic life support as obtained by courses offered by the 
American Heart Association or the American Red Cross;] 
(i) Oxygenation. Color of mucosa, skin or blood shall be continually evaluated. 
Oxygenation saturation shall be evaluated continuously by pulse oximetry;
(ii) Ventilation. Intubated patient - must auscultate breath sounds and monitor 
of end-tidal CO2. Non-intubated patient - auscultation of breath sounds, 
observation of chest excursions and/or monitoring of end-tidal CO2; 
(iii) Circulation. Continuous EKG monitoring of all patients throughout the 
procedure with electrocardioscopy shall occur. Shall record blood pressure and 
pulse continually at least every five minutes;
(iv) Temperature. A device capable of measuring body temperature should be 
readily available, if needed, during the administration of parenteral deep 
sedation/general anesthesia. When agents implicated in precipitating malignant 
hyperthermia are utilized, continual monitoring of body temperature must be 
performed;
(v) Documentation. A written time-oriented anesthetic record must be maintained. 
Individuals present during the administration of parenteral deep 
sedation/general anesthesia should be documented. 
(E) <nl>Recovery and Discharge:<ol> [maintain the necessary emergency equipment 
and medications to perform advanced cardiac life support under the guidelines of 
the American Heart Association (airway equipment, required intravenous equipment 
and medication, defibrillator, electrocardioscope, etc.] 
(i) oxygen and suction equipment must be immediately available in the recovery 
area and/or operatory; 
<nl>(ii)<ol> continual monitoring of vital signs when the anesthetic is no 
longer being administered, i.e., the patient must have continuous supervision 
until oxygenation, ventilation, circulation and temperature, as indicated, are 
stable and the patient is appropriately responsive for discharge from the 
facility; 
(iii) the dentist must determine and document that oxygenation, ventilation, 
circulation activity, skin color, level of consciousness and temperature, as 
indicated, are stable prior to discharge;
(iv) must provide explanation and documentation of post-operative instructions 
to patient and/or a responsible adult at the time of discharge. 
(v) the dentist must determine and provide for documentation that the patient 
has met discharge criteria prior to leaving the office. 
(F) <nl>Special situations include multiple/combination techniques and types of 
special patients:<ol>[maintain a minimum of two auxiliary personnel who shall be 
capable of reasonably assisting in procedures, problems, and emergencies 
incident to the use of deep sedation/general anesthesia; and
(i) In selected circumstances, parenteral deep sedation/general anesthesia may 
be utilized without first establishing an indwelling intravenous line. These 
circumstances include parenteral deep sedation/general anesthesia for very brief 
procedures, or brief periods of time, which, for example, may occur in some 
pediatric patients; or the establishment of intravenous access after parenteral 
deep sedation/general anesthesia has been induced due to poor patient 
cooperation. Vital sign monitoring and IV access during special situations 
should in as far as possible adhere to generally accepted standards of care. 
When these situations occur, the dentist responsible for administering 
parenteral deep sedation/general anesthesia should document the reasons 
preventing the recommended preoperative of intraoperative management. 
(ii) Due to the fact that many dental patients undergoing parenteral deep 
sedation/general anesthesia are mentally and/or physically challenged, it is not 
always possible to suitably evaluate these patients prior to administering care. 
When these situations occur, the dentist responsible for administering the 
parenteral deep sedation/general anesthesia should document the reasons 
preventing the recommended preoperative management. 
(G) <nl>Emergency Management:<ol> [not allow a deep sedation/general anesthesia 
procedure to be performed on a dental patient in his/her office by a certified 
registered nurse anesthetist (CRNA) unless the dentist maintains a permit for 
deep sedation/general anesthesia issued by the Texas State Board of Dental 
Examiners] 
(i) the anesthesia permit holder/provider is responsible for the anesthetic 
management, adequacy of the facility and treatment of emergencies associated 
with the administration of parenteral deep sedation and/or general anesthesia 
including immediate access to pharmacologic antagonists and equipment for 
establishing a patent airway and providing positive pressure ventilation with 
oxygen; 
(ii) advanced airway equipment, resuscitation medications and a defibrillator 
must also be immediately available; 
(iii) appropriate pharmacologic agents must be immediately available if known 
triggering agents of malignant hyperthermia are part of the anesthesia plan. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on August 24, 1998.
TRD-9813444
Douglas A. Beran, Ph.D.
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 463-6400

SUBCHAPTER S.Mobile Dental Facilities and Portable Dental Units
22 TAC sec.sec.109.400-109.403
The State Board of Dental Examiners proposes new subchapter S, Mobile Dental 
Facilities and Portable Dental Units, new sec.109.400, sec.109.401, sec.109.402, 
sec.109.403, to TAC Chapter 109 concerning provisions of dental services through 
use of mobile and portable facilities.
Douglas A. Beran, Executive Director, State Board of Dental Examiners (SBDE), 
has determined for the first five-year period the rules are in effect there will 
be fiscal implications for state or local government as a result of enforcing 
the rules. One fiscal implication will be contingent upon the number of annual 
permits a state or local government entity applies for and the annual 
application fees for those permits pursuant to Rule 109.402(a), Obtaining a 
Permit. A second fiscal implication will be contingent upon the equipment the 
state or local government entity may have to purchase to comply with proposed 
Rule 109.402(b)(8). 
Mr. Beran has determined that for each year of the first five years the new 
subchapter is in effect the public benefit anticipated as a result of enforcing 
the rules will be that portable and mobile dental facilities will be permitted 
initially and renewed annually and thus meet requirements of this subchapter. 
Further, the effect of enforcement will be to assure a minimum quality of care 
and follow-up for individuals who receive dental care from dentists providing 
care either through a mobile dental facility or through a portable dental unit 
by providing that (1) dental care is provided by qualified dental personnel in 
conformity with state statutes and regulations; (2) patient records are 
safeguarded; (3) provisions are made for emergency and follow-up care; (4) an 
audit trail exists of patients served and services provided; (5) dental services 
are provided in a clean environment; and that (6) the SBDE may cancel a permit 
upon a determination of non-compliance with the Dental Practice Act or the 
SBDE's rules and regulations after an investigation and after an opportunity for 
a hearing. 
Similar to the fiscal implications for state and local government, there will be 
fiscal implications for small businesses, viz., annual permit application fees 
and equipment purchases. Such costs, however, assure a minimum quality of care 
that is reasonable for the public's safety. These costs, however, are not so 
negative as to impact the economic viability of a small business. Therefore, the 
SBDE has determined that compliance with the proposed rules will have not have 
an adverse economic impact on small businesses as the cost of compliance, if 
any, will be minimal. 
Comments on the proposals may be submitted to Mei Ling Clendennen, Executive 
Assistant, State Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 800, 
Austin, Texas 78701, (512-463-6400). To be considered, all comments and written 
requests for public hearing must be received by the State Board of Dental 
Examiners on or before October 5, 1998. 
The new rules are proposed under Texas Government Code sec.2001.021 et.seq; 
Texas Civil Statutes, Article 4543sec.2 and 4551d which provide the State Board 
of Dental Examiners with the authority to adopt and promulgate rules consistent 
with the Dental Practice Act; and Article 4548ksec.2 which allows dentists to 
maintain multiple offices so long as they are maintained in compliance with 
Board rules.
The proposed new rules do not affect other statutes, articles, or codes.

sec.109.400. Permit Required.
(a) Every mobile dental facility, and, except as provided herein, every portable 
dental unit operated in Texas by any entity must have a permit as provided in 
subchapter S, Mobile Dental Facilities and Portable Dental Units. 
(b) Licensees who do not have a permit for a portable dental unit or who are 
employed by a dental organization not having a portable dental unit permit may 
provide dental services through use of dental instruments and equipment taken 
out of a dental office without a permit if: 
(1) The service is provided as emergency treatment; 
(2) A patient of record of the licensee or organization is treated outside of 
the dental office; 
(3) Treatment is provided to residents of nursing homes or convalescent 
facilities; or, 
(4) Treatment is provided without charge to patients or to any third party 
payer, so long as such treatment is not provided out of the office on a regular 
basis. 

sec.109.401. Definitions. 
The following words and terms, when used in subchapter S, Mobile Dental 
Facilities and Portable Dental Units, shall have the following meanings, unless 
the context clearly indicates otherwise. 
(1) Mobile Dental Facility - any self-contained facility in which dentistry will 
be practiced which may be moved, towed, or transported from one location to 
another. 
(2) Portable Dental Unit - any non-facility in which dental equipment, utilized 
in the practice of dentistry, is transported to and utilized on a temporary 
basis at an out-of-office location, including, but not limited to, other 
dentists' offices, patients' homes, schools, nursing homes, or other 
institutions. 
(3) Permit Holder - a licensed Texas dentist or an organization authorized by 
the Dental Practice Act to employ licensed Texas dentists to whom the permit is 
issued as provided in subchapter S, Mobile Dental Facilities and Portable Dental 
Units. 
(4) Session - a period of time during which personnel associated with a 
permitted facility or unit are available to provide dental services at a 
location. 

sec.109.402. Obtaining a Permit. 
(a) A licensed Texas dentist, or an organization authorized to hire dentists as 
detailed in Rule 107.300 of this title (relating to Registration of Non-Profit 
Corporations Authorized to Hire Dentists) wishing to operate a mobile dental 
facility or a portable dental unit, shall apply to the State Board of Dental 
Examiners (SBDE) for a permit on a form provided by the Board and pay an 
application fee in an amount set by the Board. A governmental entity may obtain 
a single permit, for all facilities; or all units, listed on an application. 
(b) A completed application form submitted to the SBDE with all questions 
answered will be reviewed and if all the requirements listed in this section are 
met, a permit will be issued. The application must include: 
(1) An address of record that is not a post office box; 
(2) the name and address of the permit holder; 
(3) the name and address, and when applicable, the license number of each 
dentist, dental hygienist, laboratory technician, and dental assistant 
associated with the facility or unit for which a permit is sought; 
(4) a copy of a written agreement for emergency follow-up care for patients 
treated in the mobile dental facility, or through a portable dental unit, and 
such agreement must include identification of and arrangements for treatment in 
a dental office which is permanently established within a reasonable geographic 
area; 
(5) a statement that the mobile dental facility or portable dental unit has 
access to communication facilities which will enable dental personnel to contact 
assistance as needed in the event of an emergency; 
(6) a statement that the mobile dental facility or portable dental unit conforms 
to all applicable federal, state, and local laws, regulations, and ordinances 
dealing with radiographic equipment, flammability, construction standards, 
including required or suitable access for disabled individuals, sanitation, and 
zoning; 
(7) a statement that the applicant possesses all applicable county and city 
licenses or permits to operate the facility or unit; 
(8) either a statement that the unit will only be used in dental offices of the 
applicant or other licensed dentists, or a list of all equipment to be contained 
and used in the mobile dental facility or portable dental unit, which must 
include: 
(A) dental treatment chair; 
(B) a dental treatment light; 
(C) when radiographs are to be made by the mobile dental facility or portable 
dental unit, a stable portable radiographic unit that is properly monitored by 
the authorized agency; 
(D) when radiographs are to be made by the mobile dental facility or portable 
dental unit, a lead apron; 
(E) a portable delivery system, or an integrated system if used in a mobile 
dental facility; 
(F) an evacuation unit suitable for dental or surgical use; and, 
(9) a list of appropriate and sufficient dental instruments including explorers 
and mouth mirrors, and infection control supplies, such as gloves, face masks, 
etc., that are on hand. 

sec.109.403. Operating Requirements for Permitted Mobile Dental Facilities or 
Portable Dental Units.
(a) A permit holder is required to operate a permitted mobile dental facility or 
portable dental unit in compliance with all state statutes and regulations. 
Further, a permit holder shall: 
(1) In writing, notify the SBDE of a change in any address required in Rule 
109.402 (b) (1) of this chapter (relating to Obtaining a Permit) within sixty 
days of the change; 
(2) In writing, notify the SBDE of a change in any personnel listed as required 
by Rule 109.402 (b) (2) of this chapter (relating to Obtaining a Permit) within 
thirty days of any such change; 
(3) Prominently display all dental and dental hygienist licenses, mobile dental 
facility or portable dental unit permits, or copies of permits if one permit is 
issued for multiple facilities or units, a consumer information sign as 
described in Rule 109.10 of this chapter (relating to Consumer Information) in 
compliance with the Dental Practice Act and/or the rules and regulations of the 
SBDE, provided, however, that a licensee may display a copy of the original 
dental or dental hygiene license that is certified by a notary public as a true 
and correct duplicate of the original; 
(4) Before beginning a session at any location arrange for 
(A) access to a properly functioning sterilization system; 
(B) ready access to an adequate supply of potable water; and 
(C) ready access to toilet facilities; 
(5) On the tenth work day of January, April, July and October of each year, file 
with the SBDE a written report for the preceding quarter detailing the location, 
including a street address, the dates of each session, and the number of 
patients served and the types of dental procedures and quantity of each service 
provided. 
(6) Insure that all written or printed materials available from or issued by the 
mobile dental facility or portable dental unit contain the official address of 
record for the mobile dental facility or mobile dental unit; 
(7) Maintain all dental records and official records at the official address of 
record for the facility or unit; and 
(8) Operate a mobile dental facility or portable dental unit only when all 
requirements described in Rule 109.402 of this chapter (relating to Obtaining a 
Permit) are being met. 
(b) A permit to operate a mobile dental facility or portable dental unit expires 
one year after the issuance date, or on the date when the permit holder is no 
longer associated with the mobile dental facility or portable dental unit, 
whichever is first. 
(c) A permit holder may renew a permit by submitting an annual application, and 
payment of required fee. 
(d) Upon cessation of operations by the mobile dental facility or portable 
dental unit, the permit holder shall notify the SBDE of the final disposition of 
patient records and charts. 
(e) A permit to operate a mobile dental facility or portable dental unit is not 
transferable. 
(f) The SBDE may cancel a permit if upon an investigation and after opportunity 
for a hearing, a determination is made of non-compliance with the Dental 
Practice Act or the SBDE's rules and regulations. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on August 24, 1998.
TRD-9813436
Douglas A. Beran, Ph.D.
Executive Director
State Board of Dental Examiners
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 463-6400

TITLE 25. HEALTH SERVICES
PART II. Texas Department of Mental Health and Mental Retardation
CHAPTER 419.Medicaid State Operating Agency Responsibilities
SUBCHAPTER G.Medicaid Fair Hearings
25 TAC sec.sec.419.301-419.317
The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes 
new sec.sec.419.301 - 419.317 of new Chapter 419, Subchapter G, concerning 
Medicaid fair hearings. 
The subchapter describes the procedures for Medicaid fair hearings conducted by 
TDMHMR and are consistent with the federal regulations concerning fair hearings 
as described in 42 CFR Subpart E, sec.sec.431.200 et. seq. 
Donald C. Green, Chief Financial Officer, has determined that for each year of 
the first five years the new sections as proposed are in effect, enforcing or 
administering the new sections does not have foreseeable implications relating 
to cost or revenues of state or local government. 
Ernest McKenney, director, Medicaid Administration, has determined that for each 
of the first five years the proposed new sections are in effect the public 
benefit anticipated is the implementation of fair hearing procedures that are 
uniform for all operating agencies. For each of the first five years the new 
sections are in effect there would be no additional economic cost to persons 
required to comply as a result of the proposed new sections. There will be no 
effect on small businesses because small businesses will not participate in the 
administration of fair hearings for Medicaid recipients. 
TDMHMR has determined that administering or enforcing the new sections as 
proposed will not affect local economies. 
A public hearing will be held at 9:00 a.m. on Tuesday, September 22 1998, in the 
auditorium of the main TDMHMR Central Office building (Building 2) at TDMHMR 
Central Office, 909 West 45th Street, Austin, Texas, to accept oral and written 
testimony concerning the proposal. Oral and written testimony will also be 
accepted on the Health and Human Services Commission's rules governing the same 
matter, 1 TAC sec.sec.357.1 - 357.29, which will be proposed in an upcoming 
issue of the Texas Register. Persons requiring an interpreter for the deaf or 
hearing impaired or other accommodation should contact Sheila Wilkins, Office of 
Policy Development, at (512) 206-4516, or should call the TDY phone number of 
Texas Relay, which is 1-800-735-2988, within 72 hours prior to the public 
hearing.
Written comments on the proposal may be sent to Stacy Sallee, Associate Counsel, 
Health and Human Services Commission, 4900 N. Lamar Blvd. 4th floor, Austin, 
Texas 78751, within 30 days of publication. 
These sections are proposed under the Texas Health and Safety Code, sec.532.015, 
which provides the Texas Mental Health and Mental Retardation Board with broad 
rulemaking authority; the Texas Human Resources Code, sec.32.021, which provides 
TDMHMR with authority to adopt necessary rules for the proper and efficient 
operation of Medicaid programs for which it is the operating agency; and the 
Texas Government Code, sec.531.024, which requires the promulgation of uniform 
fair hearings rules for all Medicaid-funded services.
These sections would affect the Texas Government Code, sec.531.024. 

sec.419.301.Purpose and Scope.
(a) Purpose. The Texas Health and Human Services Commission (HHSC) is required 
by state law to promulgate uniform fair hearing rules for all Medicaid-funded 
services. An opportunity for a fair hearing is required by federal law and 
regulation in any Medicaid case for a person whose claim for services is denied 
or not acted upon promptly. An opportunity for a fair hearing is also required 
when an operating agency or its designee takes action to suspend, terminate, or 
reduce services, including a denial of a prior authorization request for 
Medicaid-covered services. These fair hearing rules will also apply to any 
hearing involving the transfer or discharge of a person from a nursing facility 
or to a person adversely affected by the preadmission screening and annual 
resident review requirements. 
(b) Scope. These rules establish fair hearing procedures which an operating 
agency will follow when the operating agency is required to conduct a fair 
hearing for Medicaid-funded services. 

sec.419.302.Definitions.
The following words and terms, when used in this subchapter, have the following 
meanings, unless the context clearly indicates otherwise: 
(1) Action - A termination, suspension, or reduction of Medicaid eligibility or 
covered services by an operating agency or its designee. "Action" includes the 
denial of Medicaid eligibility and the denial of program eligibility. The term 
also means determinations by skilled nursing facilities and nursing facilities 
to transfer or discharge residents and adverse determinations made by an 
operating agency or its designee with regard to the preadmission screening and 
annual resident review. "Action" includes a denial of a prior authorization 
request for covered services affecting an individual. The term also includes the 
failure of an operating agency or its designee to act upon an individual's 
request for Medicaid covered services or for an eligibility determination within 
a reasonable amount of time. "Action" does not include expiration of a time-
limited service. 
(2) Adverse determination - A determination that the individual does not require 
the level of services provided by a nursing facility or that the individual does 
or does not require specialized services. 
(3) Date of action - The intended date on which a termination, suspension, 
reduction, transfer, or discharge becomes effective. It also means the date of 
the determination made by an operating agency with regard to the preadmission 
screening and resident review. 
(4) Designee - A contractor of an operating agency authorized to take an action 
or adverse determination as defined in this section on behalf of the operating 
agency. 
(5) Medicaid eligibility - The eligibility of an individual to receive services 
under the Texas Medicaid program. 
(6) Operating agency - A state agency operating part of the Title XIX (Medicaid) 
program under the Social Security Act and includes the Texas Department of 
Health, the Texas Department of Human Services, the Texas Rehabilitation 
Commission, and the Texas Department of Mental Health and Mental Retardation.
(7) Prior authorization request - A request for services that are reimbursable 
only when authorization or approval is obtained before services are rendered. 
Prior authorized services may be limited in duration, scope, and amount. 
Services provided beyond those authorized are not reimbursable. If a prior 
authorization is limited in duration, scope, or amount, a separate request and 
approval must be obtained for each prior authorized service. 
(8) Program eligibility - The eligibility of an individual to receive services 
within a particular Medicaid program. 

sec.419.303.Notice. 
(a) Agency Notice. If the action of the operating agency or its designee is the 
denial of Medicaid or program eligibility or the denial of a prior authorization 
request, at the time of the action, the operating agency or its designee shall 
give an individual written notice of the individual's right to request a fair 
hearing on the action. If the operating agency or its designee proposes to take 
any other action, except for failing to act upon an individual's request for 
Medicaid covered services or for an eligibility determination within a 
reasonable amount of time, the operating agency or its designee shall deliver to 
the individual notice of the individual's right to request a hearing at least 
ten (10) days prior to the date of action, unless the circumstances in 
subsection (b) otherwise provide. 
(b) Exceptions. The operating agency or its designee may mail written notice to 
an individual not later than the date of action if: 
(1) the operating agency or its designee has factual information confirming the 
death of the individual; 
(2) the operating agency or its designee receives a clear written statement 
signed by the individual that: 
(A) he or she no longer wishes services; or 
(B) gives information that requires termination or reduction in services and 
indicates that he or she understands that this must be the result of supplying 
that information; 
(3) the individual has been admitted to an institution where he or she is 
ineligible for further services; 
(4) the individual's whereabouts are unknown and the post office returns agency 
or designee mail directed to him or her indicating no forwarding address; 
(5) the operating agency or its designee establishes the fact that the 
individual has been accepted for Medicaid services by another state; 
(6) a change in the level of medical care is prescribed by the individual's 
physician; 
(7) the notice involves an adverse determination made with regard to the 
preadmission screening requirements; or 
(8) the action is the transfer or discharge of a resident from a nursing 
facility and the date of action will occur in less than ten (10) days pursuant 
to 42 CFR sec.483.12(a)(5)(ii) because: 
(A) the safety or health of individuals in the facility would be endangered; 
(B) the resident's health improves sufficiently to allow a more immediate 
transfer or discharge; 
(C) an immediate transfer or discharge is required by the resident's medical 
needs; or 
(D) a resident has not resided in the facility for thirty (30) days. 
(c) Content of Notice. The notice shall contain: 
(1) the action that the operating agency, its designee, or nursing facility is 
taking in the case of a denial of Medicaid or Program eligibility or a denial of 
a prior authorization request or intends to take in the case of any other action 
except for failing to act upon an individual's request for Medicaid covered 
services or for an eligibility determination within a reasonable amount of time; 
(2) a statement of the reason for the action; 
(3) a reference to the statutory or regulatory authority supporting the action, 
or the change in federal or state law that requires the action; 
(4) an explanation of the individual's right to request a hearing and the 
procedure for requesting same; 
(5) a statement that the individual may represent himself or herself or use 
legal counsel, a relative, a friend, or other spokesperson; and 
(6) an explanation of the circumstances under which Medicaid is continued, or a 
transfer or discharge is deferred, if a hearing is requested. 
(d) Timeframe for Requesting a Hearing. The operating agency and its designee 
must allow the individual to request a hearing within 90 days from the date the 
notice required under subsection (a) of this section is mailed. 
(1) The request for hearing must be submitted according to the instructions 
provided in the notice sent to the individual under subsection (a) of this 
section. 
(2) It is a rebuttable presumption that a notice is received five (5) days after 
the date the notice is placed in the United States mail, postage prepaid, 
properly addressed. 
(3) If a request for a hearing is not received before the date of action, the 
action may be taken or allowed. 
(4) If a request for hearing is not received within the 90-day period, the 
individual is deemed to have waived the hearing and the action becomes final. 
(5) If the action is other than a denial of Medicaid or program eligibility or a 
denial of a prior authorization request and a request for hearing is received 
before the date of action, the action will not be taken until the final decision 
of the fair hearing has been made, unless the basis for the action is a change 
in federal or state law or regulation.

sec.419.304. Maintaining Benefits or Services. 
(a) Except as otherwise specified in subsections (b), (d) and (e) of this 
section, if the individual is currently receiving a service upon which an action 
is taken and requests a fair hearing before the date of action, the service will 
be continued until a final decision is rendered following a fair hearing. 
(b) The operating agency or its designee may terminate or reduce services before 
a hearing decision is rendered if: 
(1) it is determined at the fair hearing that the sole issue is one of state or 
federal law or policy; and 
(2) the operating agency or its designee informs the individual in writing of 
its intent to reduce or terminate services pending the hearing decision at least 
five (5) days before the termination or reduction would be effective. 
(c) The operating agency or its designee may recover or recoup the cost of any 
services provided to the individual to the extent that the services were 
furnished solely by reason of this section if the fair hearing decision supports 
the operating agency's or designee's action. 
(d) If notice is mailed under sec.419.303(b) of this title (relating to Notice) 
and the operating agency or its designee receives the individual's request for a 
hearing within ten (10) days of the mailing of the notice, and the operating 
agency or its designee determines that the action resulted from something other 
than the application of federal or state law or policy, the operating agency or 
its designee will reinstate and continue the individual's services until a 
hearing decision is rendered. 
(e) The operating agency or its designee has no obligation to begin services 
requiring prior authorization pending a final decision.

sec.419.305. Hearing Official.
The operating agency shall designate an impartial person who has not been 
directly involved in the initial determination of the action or adverse 
determination in question as a hearing official to conduct the hearing and 
render a decision. The decision of the hearing official shall be the final 
administrative action of the operating agency. 

sec.419.306.Preliminary Matters. 
(a) Notification of Hearing. The hearing official shall, at least ten (10) days 
prior to the date of the hearing, send a written notification of the hearing to 
the individual who has requested the hearing. 
(1) This notice will be sent to the address of record for the individual or to 
the address indicated in the request for hearing. 
(2) The notification shall contain: 
(A) the basis of the proposed action; 
(B) the time, date, and place of the hearing; 
(C) a statement that the individual may request the hearing to be conducted 
based on the taking of oral testimony (an "oral hearing"), or a hearing based on 
written information contained in any appropriate file and additional information 
that the individual may wish to submit for consideration (a "document hearing"), 
as is described in sec.419.309 of this title (relating to Document Hearing); and 
(D) a statement that the individual may request any reasonable accommodation 
required due to disability or language comprehension. 
(b) Access to Records. 
(1) At a reasonable time before and during the hearing, the individual shall be 
given the opportunity to examine any appropriate file, and other documents or 
records the operating agency intends to use at the hearing. 
(2) If the individual intends to introduce written medical information at the 
hearing, that information must be submitted to the hearing official at least 
seven (7) days prior to the hearing, to allow the operating agency to obtain a 
review of the material by medical staff. The failure to so submit such medical 
information shall not render the material inadmissible, but the hearing official 
shall be permitted to keep the hearing record open until a medical review of the 
material has been received from the operating agency and included in the hearing 
record. 
(c) Representation. An individual may represent himself, or be represented by 
legal counsel, a relative, a friend, or other designated spokesperson. If the 
individual does not appear at the hearing, the operating agency may require the 
submission of documentation demonstrating that the representative appearing on 
the individual's behalf has authority to represent the individual. If the 
individual appears at the hearing, no such documentation is required. 
(d) Additional Medical Assessment. If the hearing involves medical issues such 
as those concerning a diagnosis, an examining physician's report, or a medical 
review team's decision, and if the hearing officer considers it necessary to 
have a medical assessment other than that of the person involved in making the 
original decision, that medical assessment must be obtained at the operating 
agency's expense and made part of the record. 

sec.419.307.Location of Hearing and Accommodations.
(a) The hearing official shall determine the location of the hearing or whether 
it is appropriate to conduct the hearing by telecommunication as provided in 
sec.419.308 of this title (relating to Telecommunication). 
(b) The operating agency shall provide any reasonable accommodation for 
disclosed disabilities. Requests for any reasonable accommodation should be made 
in writing to the hearing official at least three (3) days prior to the hearing 
date. 
(c) The operating agency shall provide suitable interpretation for individuals 
with limited English proficiency. Requests for an interpreter should be made in 
writing to the hearing officer at least three (3) days prior to the hearing 
date. 

sec.419.308.Telecommunication. 
(a) If the hearing is an oral hearing and if telecommunication equipment is used 
for the hearing, it must be capable of allowing the parties to hear and speak to 
all other parties and to cross-examine witnesses. 
(b) The hearing official must be able to hear and speak to all parties. 
(c) Written documents to be submitted for consideration by the hearing official 
must be provided to all parties in advance of the hearing, with copies to the 
hearing official. 
(d) If an individual cannot effectively participate in a telephonic hearing 
because of a disability, the individual may request that the hearing be 
conducted in person. 

sec.419.309.Document Hearing. 
The hearing may be conducted based on the written information contained in any 
appropriate file and additional written information submitted to the hearing 
official and the other party not less than seven (7) days prior to the hearing 
without the necessity of taking oral testimony, provided that the parties are 
given the opportunity to respond to any written material submitted.

sec.419.310.Privileges.
No party to a fair hearing is required to disclose communications between a 
lawyer and a client, a husband and a wife, a clergy-person and a person seeking 
spiritual advice, or the name of an informant, or other information protected 
from being divulged by federal or state substantive law. 

sec.419.311.Burden of Proof.
(a) The operating agency bears the burden of proof in a fair hearing on an 
action or an adverse determination. 
(b) The nursing facility bears the burden of proof in a transfer or discharge 
case. 
(c) The individual bears the burden on any issue requiring the showing of "good 
cause" or an affirmative defense to the action or adverse determination. 

sec.419.312.Procedural Rights of the Individual.
The individual has the right to: 
(1) examine at a reasonable time before the date of the hearing and during the 
hearing the contents of any appropriate file, and all documents and records to 
be used by the operating agency or nursing facility at the hearing; 
(2) bring witnesses; 
(3) establish all pertinent facts and circumstances; 
(4) present an argument without undue interference; and 
(5) question or refute any testimony or evidence, including the opportunity to 
confront and cross-examine adverse witnesses. 

sec.419.313.Dismissal of Hearing.
The hearing official shall dismiss a request for a fair hearing and the proposed 
action may be taken if the individual withdraws the request in writing or fails 
to appear at the scheduled hearing without good cause. 

sec.419.314.Recording.
The hearing official shall make a record of the proceeding, either through a 
tape recording or a court reporter.
(1) The cost of a court reporter shall be borne by the person who requests that 
a court reporter be present. 
(2) The individual shall have the right to make an audio recording of the fair 
hearing. 
(3) Any witness shall have the right to make an audio recording of his or her 
testimony. 

sec.419.315.Hearing Decisions.
(a) Hearing decisions must be based exclusively on evidence introduced at the 
hearing and received in evidence. 
(b) The operating agency or its designee may grant, deny, terminate, suspend, 
modify, or reduce services in accordance with the hearing decision as rendered 
following a fair hearing. 
(c) Record. The record of the hearing consists of the following. 
(1) A transcript or recording of testimony and exhibits received in evidence. 
(2) All documents and requests for admission, together with the ruling on 
admissibility made by the hearing official. 
(3) The hearing officer's decision, composed of a statement of the persuasive 
evidence, findings of fact and conclusions of law (identifying the relevant 
regulations and/or statutes), and a statement of restored benefits, if 
appropriate. 
(d) The hearing decision must be made and a copy of the decision furnished to 
the individual within 90 days of the request for a fair hearing unless the 
individual waives the 90-day requirement in writing. 
(e) If the individual is enrolled in a managed care organization (MCO), the 
operating agency will also notify the MCO of its decision. The decision of the 
operating agency is binding on the MCO and on any applicable designee. 
(f) Hearing decisions are available to the public, subject to the requirements 
under federal and/or state law for safeguarding information relating to the 
Medicaid program. 

sec.419.316.References.
Reference is made in this subchapter to 42 CFR sec.481.12(a)(5)(ii).

sec.419.317.Distribution.
This subchapter governing Medicaid fair hearings shall be distributed to: 
(1) members of the Texas Board of Mental Health and Mental Retardation; 
(2) executive, management, and program staff at Central Office; 
(3) Medicaid providers; 
(4) persons designated as hearing officials; 
(5) upon request, any party to a fair hearing conducted under this subchapter; 
and 
(6) advocates and advocacy organizations.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 24, 1998.
TRD-9813446
Charles Cooper
Chairman
Texas Department of Mental Health and Mental Retardation
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 206-4516

TITLE 30. ENVIRONMENTAL QUALITY
PART I. Texas Natural Resource Conservation Commission
CHAPTER 122. Federal Operating Permits
The Texas Natural Resource Conservation Commission (commission) proposes 
amendments to sec.122.10, concerning General Definitions, sec.122.130, 
concerning Initial Application Due Dates, sec.122.134, concerning Complete 
Application, sec.122.201, concerning Initial Permit Issuance, sec.122.501, 
concerning General Operating Permits, sec.122.503, concerning Application 
Revisions for Changes at a Site, sec.122.504, concerning Application Revisions 
When a General Operating Permit is Revised or Repealed, sec.122.506, concerning 
Public Notice for General Operating Permits, sec.122.508, concerning Notice and 
Comment Hearings for General Operating Permits, and new sec.122.509, concerning 
Public Announcement for General Operating Permits, and new sec.122.510, 
concerning General Operating Permits Adopted by the Commission. 
EXPLANATION OF THE PROPOSED RULES 
This proposal would establish new procedures for developing general operating 
permits (GOPs) under 30 TAC Chapter 122, concerning Federal Operating Permits. 
This proposal will also amend the Chapter 122 full program application schedule 
for GOPs. Chapter 122, the state regulation that implements the Federal 
Operating Permits Program in Texas, was originally adopted September 20, 1993, 
and revised to be effective November 10, 1997. Chapter 122 is based on Title 40 
Code of Federal Regulations Part 70 (40 CFR 70), which was promulgated by the 
United States Environmental Protection Agency (EPA) to establish the minimum 
elements of the federal operating permits program, as required by Title V of the 
Federal Clean Air Act Amendments of 1990 (FCAA). The goal of the federal 
operating permits program is to provide a compliance and enforcement tool by 
codifying all applicable requirements for the control of air pollution at a 
specific site into an operating permit. 
General operating permits are an alternate permitting mechanism provided for in 
Chapter 122, consistent with 40 CFR 70 requirements that authorize the operation 
of multiple sites that are similar in terms of operations, processes, and 
emissions. For the Chapter 122 interim program, four GOPs were developed for oil 
and gas industry sites and one GOP was developed for the bulk fuel terminal 
industry sites. These GOPs currently reside in sec.sec.122.511-122.515, 
respectively. One GOP was developed for the Chapter 122 full program and is 
available to owners or operators of sites that have only site-wide requirements. 
This GOP resides in sec.122.516. These GOPs have so far been a very successful 
mechanism for streamlining the permitting of certain sites subject to Chapter 
122. 
The existing GOPs are permits by rule and were adopted through the rulemaking 
process consistent with the requirements of the Texas Administrative Procedure 
Act (APA) and 40 CFR 70, which require a 30-day public comment period including 
an opportunity to request a notice and comment hearing, an affected state 
review, and a 45-day EPA review. In addition, a 60-day public petition period, 
during which the public may petition EPA to object to a permit, begins after the 
45-day EPA review period and may extend after permit issuance. These procedural 
requirements were satisfied when the GOPs were adopted. Subsequently, each time 
an applicant applies for authorization to operate under a GOP, the executive 
director need only review the application to ensure that the site qualifies for 
the GOP. Individual applications are then not subject to public notice, affected 
state review, EPA review, and public petition requirements, since these 
procedural requirements occurred during the rulemaking process. These individual 
applications, however, are subject to the Texas Clean Air Act procedural 
requirement to submit a notice of the application to the state senator and 
representative who represent the area in which the site is or will be located. 
The purpose of the operating permits program is to codify applicable 
requirements. Applicable requirements may periodically be revised, repealed, or 
updated. For example, the EPA may revise new source performance standards 
(NSPS), national emission standards for hazardous air pollutants (NESHAPS), and 
maximum available control technology (MACT) standards. The commission 
periodically revises the reasonably available control technology (RACT) 
standards (e.g., 30 TAC Chapters 111, 112, and 115). Facilities operating under 
GOPs would be required to comply with the revised applicable requirements by 
writing provisional terms and conditions, even though the revised applicable 
requirements have not been codified into the GOP through rulemaking. This 
situation can cause confusion for regulated industries, the public, and 
commission enforcement personnel, since the language in the GOP (which is 
currently in a rule) would necessarily lag behind any recent revisions to the 
applicable requirements codified in the GOP. Since GOPs currently reside in 
Chapter 122, it takes a second rulemaking and, at a minimum, four to six months 
to revise the GOP. By authorizing the executive director to amend a GOP, the 
commission can more quickly update permits and omit a second rulemaking. For 
example, once an update to a GOP is completed, the applicable requirements may 
have been again revised and the new GOP will not reflect all current applicable 
requirements. By removing the GOPs themselves from Chapter 122 and authorizing 
the executive director to revise a GOP, the GOPs can be quickly updated, thereby 
eliminating a significant time delay in incorporating revisions to the codified 
applicable requirements. This will assist the regulated industries, since they 
will not have to maintain provisional terms and conditions for lengthy periods 
of time. Resources that would be dedicated to revising the rules through the 
formal rulemaking process can be directed to review of applications. The 
commission emphasizes that this proposal will not eliminate opportunity for 
public comment on proposed changes in the underlying applicable requirements 
since such changes, whether done on a state or federal level, are made using the 
traditional rulemaking process. Further, the proposed rule establishes a process 
for the revision of the GOPs by the executive director which is similar to the 
process used for revisions to site operating plans. 
As the result of concern over the amount of rulemaking involved in maintaining 
GOPs, the commission is proposing new procedures for establishing GOPs. These 
procedures are similar to those for the Texas Pollution Discharge Elimination 
System general permits in that they provide for GOPs that do not involve 
rulemaking. The proposed amendments allow the executive director to issue GOPs 
and will remove the requirement for GOPs to be adopted by the commission through 
rulemaking. This would allow the executive director to quickly issue and revise 
GOPs without spending time and resources in rulemaking. As a result, the 
commission will be better able to maintain a current set of applicable 
requirements in the GOPs. Although this proposal would eliminate rulemaking 
steps involved in establishing and revising GOPs, the GOPs will continue to be 
subject to all Chapter 122 procedural requirements. The authority for the GOPs 
will continue to reside in Chapter 122, Subchapter F. Before issuance by the 
executive director, the GOP will undergo Chapter 122 procedural requirements, 
including a 30-day public comment period with an opportunity to request a notice 
and comment hearing, an affected state review, and a 45-day EPA review. The GOPs 
will also be subject to a 60-day public petition period, during which the public 
may petition EPA to object to a permit. Although the specific public notice 
procedures and notice and comment hearing procedures may vary slightly due to 
the GOPs being an alternate permitting mechanism, these are the same Chapter 122 
requirements applied to site-specific operating permits. This approach will 
change the commission's procedures for establishing and maintaining GOPs, but 
will not significantly affect application for and operation under a GOP. If 
adopted, the proposed procedures will authorize the executive director to 
establish permits governing multiple similar sites through procedures almost 
identical to those used for site-specific operating permits.
The proposed rule changes will provide new procedures for establishing GOPs; 
however, they will not change or repeal any of the current GOPs residing in 
Chapter 122. This proposal provides the authority for the executive director to 
issue GOPs and is the first of three steps necessary for the conversion of the 
GOPs currently contained in Chapter 122, Subchapter F into those issued by the 
executive director. Once this authority is in place, the executive director will 
use the new procedures to propose GOPs that will replace those currently 
residing in Chapter 122, Subchapter F. After the new GOPs have been issued, 
those in Subchapter F will be repealed. 
The change to sec.122.501(a) would give the executive director authority to 
issue a GOP. Throughout the proposal, the term "adoption" would be replaced with 
the term "issuance." The commission proposes to delete references to the 
Government Code, APA, and Chapter 2001 or 2002 from sec.122.501(a)(6) and 
everywhere else it appears in Subchapter F, because these procedures refer to 
rulemaking. The language in sec.122.501(b) would be revised to be consistent 
with the wording in Chapter 122, Subchapter C, concerning Initial Permit 
Issuances. Section 122.501(d) would be revised to authorize the executive 
director to revise a GOP and would establish procedures to revise or rescind a 
GOP. The proposed language establishes requirements for issuing administrative, 
minor, and significant permit revisions to GOPs, which are consistent with the 
requirements in Subchapter C for site-specific permits. Current GOP procedures 
do not distinguish between administrative, minor, and significant permit 
revisions, because all revisions to GOPs are subject to rulemaking requirements. 
The commission proposes to change language in sec.122.503(a)(1), as well as in 
sec.122.504(a)(1)(B), to indicate that a change in an applicability 
determination may result in the permit holder having to submit an updated GOP 
application. These applicability determination changes may be the result of a 
change at a site or the revision, repeal, or rescission of a GOP. The word 
"original," used in describing the GOP application, would be deleted from 
sec.122.503(a)(1) because after the application has been updated, the original 
application would no longer be used to verify applicability determinations. The 
same change is proposed for sec.122.503(d) and sec.122.504(g). The current 
sec.122.503(a)(2) requires that the GOP application must be updated to account 
for any typographical errors. This paragraph would be deleted, because the only 
portions of the GOP application that must be kept up-to-date are the 
applicability determinations and the basis for those determinations. Any 
typographical errors or other types of changes in those portions of the 
application that address applicability determinations are already addressed 
under sec.122.503(a)(1). In sec.122.503(c)(2) and (3), the term "updated 
application" is proposed to replace the phrase "information required in 
subsection (b) of this section" and reduce internal references within 
sec.122.503. Furthermore, in sec.122.503(c)(4), the phase "application required 
by this subsection" has been replaced with "updated application" for simplicity. 
Section 122.503(g) refers to "the emission units addressed in the authorization 
to operate"; however, since the specific emission units are actually addressed 
in the application rather than the authorization, "authorization to operate" 
would be replaced with "application." The same change is proposed in 
sec.122.504(b). The current sec.122.504(a) bases applicability of the section on 
whether or not the permit holder's authority to operate under a GOP is affected 
by the revision or repeal of a rule (applicable requirement). In an effort to 
more clearly define when these requirements apply, the commission proposes to 
directly state under what circumstances the permit holder's authority can be 
affected. The permit holder's authority will be affected if the applicability 
determinations at a site or the basis for the determinations change. This 
subsection also refers to the revision or repeal of a rule and applies when a 
rule codified in a GOP is revised or repealed. It will also provide clarity 
relating application revisions that are necessary due to a revision or 
rescission of a GOP. Additionally, this proposal would revise the subsection to 
apply to GOPs that no longer reside in sec.sec.122.511-122.515. In subsection 
(a)(1), the word "must" is proposed to be replaced with "shall" and the 
adjective "updated" would be added to the reference to the permit application 
for consistency with sec.122.503. 
Section 122.504(a)(2) currently states that an application containing 
information required under sec.122.504(a)(1) must be submitted by the effective 
date of the revised or repealed GOP. However, the current sec.122.504(a)(4) 
states that sec.122.504(a)(1) information shall be submitted within 45 days of 
the compliance date of the new requirement or effective date of the repealed 
requirement. Since a GOP is a codification of applicable requirements, new or 
repealed requirements will be in effect before the GOP can be revised to reflect 
these requirements. Therefore, the information relating to new or repealed 
requirements will be submitted before the GOP becomes effective. The application 
deadline in sec.122.504(a)(2) is then no longer relevant and would be deleted. 
The requirements of sec.122.504(a)(4) would also be moved to sec.122.504(a)(3) 
and revised to clarify that the specified requirements apply when a revision to 
a GOP is the result of a change in an applicable requirement or state-only 
requirement. The requirements in this paragraph would also be subdivided for 
purposes of clarity. The proposed sec.122.504(a)(3)(B) would replace the 
citations listing all the application information with "updated application" to 
avoid unnecessary internal references. A new sec.122.504(a)(4) is proposed to 
address the situation in which a revision to a GOP is not the result of a change 
in an applicable requirement or a state-only requirement. For example, this 
paragraph would apply if a GOP were revised to include periodic monitoring 
requirements or to correct a mistake. In this case, the permit holder would 
submit an updated application within 45 days of the effective date of the 
revision. The current sec.122.504(c) addresses the repeal of GOPs and the 
current sec.122.504(d) addresses both the revision and repeal of GOPs. For 
clarity, the language in these sections would be revised so that sec.122.504(c) 
addresses rescission of a GOP and sec.122.504(d) addresses revisions. Consistent 
with the current requirement to submit an application by the effective date of 
the GOP, the commission proposes that a permit holder who no longer qualifies 
for a GOP as a result of revision or rescission must submit an application for 
another operating permit by the effective date of the rescission or revision. 
Language in sec.122.504(d) regarding the intent of the permit holder to operate 
under the GOP would be deleted because this section addresses procedures 
required as the result of changes to rules or GOPs and not decisions by the 
permit holder to change the way in which a site is operated. 
Throughout sec.122.506, references to "proposed" in describing the draft general 
operating permit would be deleted because this term is used to describe a stage 
in the rulemaking process. The current sec.122.506 was written to account for 
the rulemaking process, which requires a hearing for the adoption of, or 
revision to, any GOP. However, if a GOP was issued by the executive director 
consistent with the public notice requirements for issuing site-specific permits 
in Chapter 122, Subchapter D, a hearing could be held if requested, but would 
not always be required. Therefore, revisions to sec.122.506(a) and a new 
sec.122.506(b) are proposed to include the public notice requirements for GOPs 
issued by the executive director and to allow a hearing to be requested 
consistent with the site-specific requirements. The proposed revision to 
sec.122.506(a) will also include the procedures for public notice for newly 
issued GOPs, significant revisions to GOPs, and rescissions of GOPs. The notice 
of a draft GOP will be published in the Texas Register, on the commission's 
publicly accessible electronic media, and in a newspaper of general circulation 
within each of the following metropolitan areas: Beaumont, Houston, and Fort 
Worth. These newspapers were selected since they are commonly used by the 
commission to provide notice for rulemaking. Additional notice may be provided, 
as determined by the executive director, in a newspaper of largest general 
circulation in the metropolitan area appropriate for the draft general operating 
permit. The commission believes that publication in the Texas Register, on the 
commission's publicly accessible electronic media, and newspaper notices will 
provide ample notice to the regulated community and general public concerning 
the issuance, revision, or rescission of GOPs. Amendments to sec.122.506(b) 
would require that a GOP and any associated notices be made accessible to local 
air pollution control agencies, consistent with Subchapter D. 
Throughout sec.122.508, references to "proposed" in describing the draft general 
operating permit would be deleted, because this term is used to describe a stage 
in the rulemaking process. Section 122.508 would be amended to state that a 
hearing need not be held if it is not requested. Again, the proposed language is 
consistent with the notice and comment hearings requirements in Subchapter D. 
The proposed new sec.122.509 would establish requirements for public 
announcement of minor permit revisions to GOPs. Consistent with the revision 
requirements in Subchapter C, minor permit revisions to GOPs will be subject to 
public notice requirements. The public announcement requirements in Subchapter D 
could not simply be referenced, because they include requirements that apply to 
specific permit applications, and the GOP public announcement requirements must 
be generic enough to account for all authorization granted under the GOP. Except 
for the application specific or site-specific requirements, all public 
announcement requirements in Subchapter D have been included in sec.122.509. The 
proposed new sec.122.510 would keep GOPs issued under the APA in effect until 
they are repealed through rulemaking. This section would also state that an 
authorization to operate under a GOP adopted by the commission that is replaced 
with a GOP issued by the executive director will be automatically converted. In 
addition, the new section states that should the applicability determinations 
and the basis for the determinations affecting a site remain unchanged, the 
permit holder is not required to submit an application for the GOP issued by the 
executive director. This will allow permit holders to avoid having to submit 
applications containing no new information. 
Another area addressed by this proposed rulemaking is the Chapter 122 full 
program application schedule for GOPs. Under the full program, an owner or 
operator should have submitted an abbreviated initial permit application by 
February 1, 1998, for any site subject to the full program regardless of permit 
application type. Once the abbreviated permit application has been submitted, 
the remaining permit application information submittal then becomes specific to 
permit application type and Standard Industrial Classification (SIC) major 
grouping. Currently, sec.122.130(b)(2) indicates that an owner or operator of a 
site subject to the full program and applying for a GOP should submit remaining 
permit application information by July 25, 1998, regardless of SIC major 
grouping. This requirement was written in the paragraph specifically for the 
sec.122.516 GOP developed for full program sites. The commission has determined, 
though, that owners or operators of some sites subject to the full program may 
be able to take advantage of a GOP developed for interim program sites. Owners 
or operators of these full program sites, however, have a deadline for 
submitting the remaining permit application information that is later than July 
25, 1998. To allow the owners or operators of these full program sites to take 
advantage of a GOP and submit remaining permit application information at a date 
later than July 25, 1998, the phrase "for any site for which the applicant is 
applying for a general operating permit and" is proposed to be deleted from 
sec.122.130(b)(2). 
Additionally, this proposed rulemaking includes changes to sec.122.134(b)(5) and 
sec.122.201(f) to maintain consistency with the proposed changes to Subchapter 
F. In sec.122.134(b)(5), the term "rescinded" is proposed to replace "repealed" 
due to a proposed change in the sec.122.504 title. Furthermore, the current 
sec.122.201(f) notes that the adoption of a GOP is not required to meet the 
requirements of sec.122.201. Since the proposed Subchapter F changes will create 
GOPs issued by the executive director, the phrase "issuance of a general 
operating permit by the executive director" is proposed to replace the phrase 
"adoption of a general operating permit." The definition of Permit or Federal 
Operating Permit in sec.122.10 would be changed to refer to GOPs issued, 
renewed, or revised by the executive director. The definition of "General 
operating permit" would be revised to read that a GOP is one issued under 
Subchapter F. 
The proposed rulemaking will provide new procedures for developing and 
maintaining future GOPs, but will not affect any current GOPs or any 
authorization to operate under them. It will also allow the owners or operators 
of certain sites subject to the full program to take advantage of the 
streamlined permitting mechanism offered by GOPs. 
FISCAL NOTE 
Stephen Minick, Strategic Planning and Appropriations, has determined that for 
the first five-year period the sections are in effect, there will be no 
significant economic costs for state or local government as a result of 
administration or enforcement of the sections. The commission does not expect 
any increase in costs for sites currently operating under Chapter 122. 
PUBLIC BENEFIT 
Mr. Minick has also determined that for each year of the first five years the 
sections are in effect, the anticipated public benefit will be a more current 
set of applicable requirements in the general operating permits, which will 
result in a more effective compliance and enforcement tool. This is primarily an 
administrative action that proposes new procedures to be used by the executive 
director for the development of general operating permits. It does not add any 
new regulatory requirements to affected permit holders or potential permit 
holders, including those holders that may be small businesses. 
DRAFT REGULATORY IMPACT ANALYSIS 
The commission has reviewed the proposed rulemaking according to the regulatory 
analysis requirements of Texas Government Code (the Code), sec.2001.0225. The 
proposal is administrative and addresses internal procedures of the commission. 
It does not add any new regulatory requirements to affected industries. It will 
not adversely affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, or the public health and 
safety of the state or a sector of the state and is not a major environmental 
rule as defined in the Code. 
As an alternate Federal Operating Permit mechanism, 40 CFR sec.70.6(d) allows 
for the use of General Permits. This alternate permitting mechanism is also 
allowed in Chapter 122. Section 122.110 authorizes the executive director to 
take action on any permit on behalf of the commission. This proposal does not 
exceed a standard set by federal law and is not specifically required by state 
law. 
Texas Clean Air Act (TCAA), sec.382.051, authorizes the commission to issue 
permits, including permits for numerous similar sources. The use of General 
Permits is not specifically required by federal law and the proposed rules do 
not exceed an express requirement of state law.
This proposal does not exceed a requirement of delegation agreement or contract 
between the state and an agency or representative of the federal government to 
implement a state or federal program. No such agreement exists concerning the 
subject of this proposal. 
This action is proposed under the specific statutory authority of TCAA, 
sec.382.051, which authorizes the commission to issue permits including permits 
for numerous similar sources. This action is not proposed under the general 
powers of the agency. 
TAKINGS IMPACT ASSESSMENT 
The commission has prepared a takings impact assessment for this proposed 
rulemaking under Texas Government Code, sec.2007.043. The following is a summary 
of that assessment. The proposed rulemaking will allow the executive director to 
issue general operating permits and remove the requirement for general operating 
permits to be adopted by the commission through rulemaking. Promulgation and 
enforcement of the proposed sections will not be a burden on private real 
property because they do not place additional requirements on those required to 
obtain a federal operating permit. The proposed rulemaking will not make 
existing regulations less stringent. This rulemaking proposal is also an exempt 
action under Texas Government Code, sec.2007.003(b), since the commission is 
fulfilling its requirement to implement a federally mandated program. 
COASTAL MANAGEMENT PLAN 
The commission has determined that this rulemaking action relates to an action 
or actions subject to the Texas Coastal Management Program (CMP) in accordance 
with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources 
Code, sec.sec.33.201 et. seq.), and the commission's rules in 30 TAC Chapter 
281, Subchapter B, concerning Consistency with the Texas Coastal Management 
Program. As required by 31 TAC sec.505.11(b)(2) and 30 TAC sec.281.45(a)(3) 
relating to actions and rules subject to the CMP, commission rules governing air 
pollutant emissions must be consistent with the applicable goals and policies of 
the CMP. The commission has reviewed this rulemaking action for consistency with 
the CMP goals and policies in accordance with the rules of the Coastal 
Coordination Council, and has determined that this rulemaking action is 
consistent with the applicable CMP goals and policies. The permits issued under 
Chapter 122, concerning Federal Operating Permits, do not authorize the increase 
in air emissions nor do these permits authorize new air emissions. Interested 
persons may submit comments on the consistency of the proposed rule with the CMP 
goals and policies during the public comment period. 
PUBLIC HEARING 
A public hearing on this proposal will be held September 28, 1998, at 2:00 p.m. 
in Room 2210 of Texas Natural Resource Conservation Commission Building F, 
located at 12100 Park 35 Circle, Austin. The hearing is structured for the 
receipt of oral or written comments by interested persons. Individuals may 
present oral statements when called upon in order of registration. Open 
discussion will not occur during the hearing; however, an agency staff member 
will be available to discuss the proposal 30 minutes prior to each hearing and 
will answer questions before and after the hearing. 
SUBMITTAL OF COMMENTS 
Comments may be submitted to Lisa Martin, Office of Policy and Regulatory 
Development, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 
239-4808. All comments should reference Rule Log Number 98011-122-AI. Comments 
must be received by 5:00 p.m., October 5, 1998. For further information or 
questions concerning this proposal, please contact Bruce McFarland of the 
Operating Permits Division, Office of Air Quality, (512) 239-1132. 
Persons with disabilities who have special communication or other accommodation 
needs who are planning to attend the hearings should contact the commission at 
(512) 239-4900. Requests should be made as far in advance as possible.

SUBCHAPTER A. Definitions
30 TAC sec.122.10
STATUTORY AUTHORITY 
The amendment is proposed under the Texas Health and Safety Code, the TCAA, 
sec.382.012, which provides the commission authority to develop a comprehensive 
plan for the state's air, sec.382.017, which provides the commission authority 
to adopt rules, sec.382.051(b)(2), which provides the commission authority to 
issue permits for numerous similar sources, and sec.382.054, which prohibits 
operation of a federal source of air pollution without a federal operating 
permit obtained from the commission. 
The proposed amendment implements Texas Health and Safety Code, sec.382.012, 
concerning the State Air Control Plan, sec.382.017, concerning Rules, 
sec.382.051(b)(2), concerning Permitting Authority of Commission; Rules, and 
sec.382.054, concerning Federal Operating Permits. 

sec.122.10. General Definitions. 
The definitions in the Texas Clean Air Act, Chapter 101 of this title (relating 
to General Rules), and Chapter 3 of this title (relating to Definitions) apply 
to this chapter. In addition, the following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
(1)-(6) (No change.) 
(7) General operating permit-A permit [by rule] issued under Subchapter F of 
this chapter (relating to General Operating Permits), under which multiple 
stationary sources may be authorized to operate.
(8)-(9) (No change.) 
(10) Permit or federal operating permit- 
(A) (No change.) 
(B) any general operating permit, or group of general operating permits, 
<nl>issued, renewed, or revised by the executive director<ol> [adopted by the 
commission] under this chapter. 
(11)-(22) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 20, 1998.
TRD-9813242
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: November 18, 1998
For further information, please call: (512) 239-1966

SUBCHAPTER B. Permit Requirements
Division 3. Permit Application
30 TAC sec.122.130, sec.122.134
STATUTORY AUTHORITY 
The amendments are proposed under the Texas Health and Safety Code, the TCAA, 
sec.382.012, which provides the commission authority to develop a comprehensive 
plan for the state's air, sec.382.017, which provides the commission authority 
to adopt rules, sec.382.051(b)(2), which provides the commission authority to 
issue permits for numerous similar sources, and sec.382.054, which prohibits 
operation of a federal source of air pollution without a federal operating 
permit obtained from the commission. 
The proposed amendments implement Texas Health and Safety Code, sec.382.012, 
concerning the State Air Control Plan, sec.382.017, concerning Rules, 
sec.382.051(b)(2), concerning Permitting Authority of Commission; Rules, and 
sec.382.054, concerning Federal Operating Permits. 

sec.122.130. Initial Application Due Dates.
(a) (No change.) 
(b) Full operating permit program. 
(1) (No change.) 
(2) The remaining application information [for any site for which the applicant 
is applying for a general operating permit and] for sites with the following 
primary SIC major groups shall be submitted by July 25, 1998 (for purposes of 
this section, each site shall have only one primary SIC code): 
(A)-(H) (No change.) 
(3) (No change.) 
(c)-(d) (No change.) 

sec.122.134. Complete Application. 
(a) (No change.) 
(b) Except as provided in subsection (c) of this section, a complete application 
for a permit shall include the following: 
(1)-(4) (No change.) 
(5) for the authorization to operate under a revised general operating permit, 
the information required by sec.122.504 of this title (relating to Application 
Revisions When a General Operating Permit is Revised or <nl>Rescinded<ol> 
[Repealed]). 
(c) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 20, 1998.
TRD-9813243
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: November 18, 1998
For further information, please call: (512) 239-1966

SUBCHAPTER C. Initial Permit Issuances, Revisions, Reopenings, and Renewals
Division 1. Initial Permit Issuances
30 TAC sec.122.201
STATUTORY AUTHORITY 
The amendment is proposed under the Texas Health and Safety Code, the TCAA, 
sec.382.012, which provides the commission authority to develop a comprehensive 
plan for the state's air, sec.382.017, which provides the commission authority 
to adopt rules, sec.382.051(b)(2), which provides the commission authority to 
issue permits for numerous similar sources, and sec.382.054, which prohibits 
operation of a federal source of air pollution without a federal operating 
permit obtained from the commission. 
The proposed amendment implements Texas Health and Safety Code, sec.382.012, 
concerning the State Air Control Plan, sec.382.017, concerning Rules, 
sec.382.051(b)(2), concerning Permitting Authority of Commission; Rules, and 
sec.382.054, concerning Federal Operating Permits. 

sec.122.201. Initial Permit Issuance.
(a)-(e) (No change.) 
(f) Neither the <nl>issuance<ol> [adoption] of a general operating permit <nl>by 
the executive director<ol> nor the granting of an authorization to operate under 
a general operating permit shall be required to meet the requirements of this 
section. General operating permits are subject to the requirements of Subchapter 
F of this chapter (relating to General Operating Permits). 
(g) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 20, 1998.
TRD-9813241
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: November 18, 1998
For further information, please call: (512) 239-1966

SUBCHAPTER F. General Operating Permits
Division 1. Procedural Requirements for General Operating Permits
30 TAC sec.sec.122.501, 122.503, 122.504, 122.506, 122.508-122.510
STATUTORY AUTHORITY 
The amendments and new sections are proposed under the Texas Health and Safety 
Code, the TCAA, sec.382.012, which provides the commission authority to develop 
a comprehensive plan for the state's air, sec.382.017, which provides the 
commission authority to adopt rules, sec.382.051(b)(2), which provides the 
commission authority to issue permits for numerous similar sources, and 
sec.382.054, which prohibits operation of a federal source of air pollution 
without a federal operating permit obtained from the commission. 
The proposed amendments and new sections implement Texas Health and Safety Code, 
sec.382.012, concerning the State Air Control Plan, sec.382.017, concerning 
Rules, sec.382.051(b)(2), concerning Permitting Authority of Commission; Rules, 
and sec.382.054, concerning Federal Operating Permits.

sec.122.501. General Operating Permits.
(a) <nl>The executive director may issue<ol> [The commission may adopt by rule] 
a general operating permit for numerous similar stationary sources provided the 
following: 
(1)-(3) (No change.) 
(4) the requirements under sec.122.508 this title (relating to Notice and 
Comment Hearings for General Operating Permits) have been satisfied; <nl> 
and<ol> 
(5) the requirements under sec.122.350 of this title (relating to EPA Review) 
have been satisfied<nl>.<ol> [; and]
[(6) the adoption process is consistent with the Government Code, Administrative 
Procedure Act, Chapter 2001 or 2002.] 
(b) General operating permits <nl>shall not be final until the requirements 
in<ol> [are subject to the requirements under] sec.122.360 of this title 
(relating to Public Petition) <nl>have been satisfied<ol>. 
(c) (No change.) 
<nl>(d)<ol> The executive director may revise or rescind any general operating 
permit issued by the executive director.
<nl>(1)<ol> The executive director may issue an administrative permit revision 
to a general operating permit provided the following: 
<nl>(A)<ol> the change meets the criteria for an administrative permit revision 
in sec.122.211 of this title (relating to Administrative Permit Revisions); and 
<nl>(B)<ol> the conditions of the general operating permit provide for 
compliance with the requirements of this chapter. 
<nl>(2)<ol> The executive director may issue a minor permit revision provided 
the following: 
<nl>(A)<ol> the change meets the criteria for a minor permit revision in 
sec.122.215 of this title (relating to Minor Permit Revisions);
<nl>(B)<ol> the conditions of the general operating permit provide for 
compliance with the requirements of this chapter; and 
<nl>(C)<ol> the requirements of this chapter in sec.sec.122.509, 122.330, and 
122.350 of this title (relating to Public Announcement for General Operating 
Permits; Affected State Review; and EPA Review) have been satisfied.
<nl>(3)<ol> The executive director may issue a significant permit revision 
provided the following: 
<nl>(A)<ol> the change meets the criteria for a significant permit revision in 
sec.122.219 of this title (relating to Significant Permit Revisions); 
<nl>(B)<ol> the conditions of the general operating permit provide for 
compliance with the requirements of this chapter; and 
<nl>(C)<ol> the requirements of this chapter in sec.sec.122.506, 122.330, 
122.508, and 122.350 of this title (relating to Public Notice for General 
Operating Permits; Affected State Review; Notice and Comment Hearings for 
General Operating Permits; and EPA Review) have been satisfied. 
<nl>(4)<ol> A significant permit revision shall not be final until the 
requirements in sec.122.360 of this title have been satisfied. 
[(d) The commission may amend or repeal any general operating permit under the 
Government Code, Administrative Procedure Act, Chapter 2001 or 2002.] 
(e) The executive director shall make a copy of the [proposed] draft general 
operating permit accessible to the EPA.
(f) General operating permits must be renewed, consistent with the procedural 
requirements <nl>in subsection (a)<ol> of this section, at least every five 
years after the effective date. 

sec.122.503. Application Revisions for Changes at a Site. 
(a) The permit holder shall submit an updated application to the executive 
director for the following activities at a site: 
(1) a change <nl>in<ol> [, addition, or removal of] any applicability 
<nl>determination<ol> [determinations] or the basis of any <nl>determination<ol> 
[determinations] in the [original] general operating permit application; 
<nl>or<ol>
[(2) a correction of typographical errors; or] 
<nl>(2)<ol> [(3)] a change in the permit identification of ownership or 
operational control of a site where the executive director determines that no 
other change in the permit is necessary, provided that a written agreement 
containing a specific date for transfer of permit responsibility, coverage, and 
liability between the old and new permit holder is maintained with the permit. 
(b) (No change.) 
(c) If the following requirements are met, the change may be operated before a 
new authorization to operate is granted by the executive director: 
(1) the permit holder complies with the following: 
(A) (No change.) 
(B) all applicable requirements; [and] 
(C) all state-only requirements; <nl>and<ol> 
(D) the provisional terms and conditions as defined in sec.122.10 of this title; 
(2) the permit holder submits to the executive director the <nl>updated 
application<ol> [information required in subsection (b) of this section] before 
the change is operated; 
(3) the permit holder maintains<nl>,<ol> with the authorization to operate under 
the general operating permit [,] the<nl> updated application<ol> [information 
required by subsection (b) of this section] until the executive director grants 
a revised authorization to operate; and 
(4) the permit holder operates under the representations in the <nl>updated<ol> 
application [required by this subsection].
(d) The permit holder need not comply with the representations in the [original] 
application that have been replaced by provisional terms and conditions before 
the granting of a new authorization to operate.
(e)-(f) (No change.) 
(g) If the emission units addressed in the <nl>application <ol> [authorization 
to operate] no longer meet the requirements for a general operating permit, the 
permit holder must submit a complete application for another operating permit. 
(h)-(i) (No change.) 

sec.122.504. Application Revisions When a General Operating Permit is Revised or 
<nl>Rescinded<ol> [Repealed].
(a) <nl>If the applicability determinations or the bases for the determinations 
at a site change due to<ol> [This section applies if the permit holder's 
authority to operate under a general operating permit is affected by] the 
revision or repeal of <nl>an applicable requirement or state-only requirement or 
the revision or rescission of a general operating permit issued by the executive 
director, the following requirements apply <ol> [a rule]. 
(1) The permit holder <nl>shall<ol> [must] submit an <nl>updated<ol> application 
for the general operating permit containing at a minimum the following 
information: 
(A) (No change.) 
(B) any changes <nl>in the<ol> [, additions, or removals of] applicability 
determinations; 
(C)-(F) (No change.) 
[(2) The application must be submitted by the effective date of the general 
operating permit.]
<nl>(2)<ol> [(3)] The permit holder shall comply with the following: 
(A) Chapter 116 of this title (relating to Control of Air Pollution by Permits 
for New Construction or Modification); 
(B) all applicable requirements; 
(C) all state-only requirements; and 
(D) the provisional terms and conditions as defined in sec.122.10 of this title 
(relating to General Definitions). 
<nl>(3)<ol> [(4)] <nl>If the updated application is required as the result of 
the revision or repeal of an applicable requirement or state-only requirement, 
the<ol> [The] permit holder shall <nl>do the following:<ol> [record the 
information required in paragraph (1)(A)-(E) of this subsection before the 
compliance date of the new requirement or effective date of the repealed 
requirement. The information in paragraph (1)(A)-(F) of this subsection shall be 
submitted no later than 45 days after the compliance date of the new requirement 
or effective date of the repealed requirement.] 
<nl>(A)<ol> record the information required in paragraph (1)(A)-(E) of this 
subsection before the compliance date of the new applicable requirement or 
state-only requirement or effective date of the repealed applicable requirement 
or state-only requirement; 
<nl>(B)<ol> submit an updated application for the general operating permit no 
later than 45 days after the compliance date of the new applicable requirement 
or state-only requirement or effective date of the repealed applicable 
requirement or state-only requirement; and
<nl>(C)<ol> [(5)] [The permit holder shall] maintain the information required in 
paragraph (1)(A)-(E) of this subsection with the authorization to operate until 
a new authorization is granted. 
<nl>(4)<ol> If the updated application is required as the result of the revision 
of a general operating permit that is not based on a change in an applicable 
requirement or state-only requirement, the permit holder shall do the following: 
<nl>(A)<ol> submit the updated application no later than 45 days after the 
issuance of the general operating permit; and 
<nl>(B)<ol> maintain the updated application with the authorization to operate 
until the general operating permit is revised. 
(b) The permit holder need not reapply for a revised general operating permit, 
provided the following: 
(1) the emission units addressed in the <nl>application<ol> [authorization to 
operate] qualify for the revised general operating permit; 
(2) (No change.) 
(3) <nl>the<ol> basis for each applicability determination remain unchanged. 
(c) If a general operating permit is <nl>rescinded<ol> [repealed] and not 
replaced, the authorization to operate under the general operating permit is 
revoked. <nl>The permit holder must apply for another operating permit no later 
than the date the general operating permit is rescinded.<ol> 
(d) If <nl>as a result of <ol> [a permit holder's authority to operate under a 
general operating permit is affected by] the revision [or repeal] of a general 
operating permit [and] the permit holder no longer qualifies for the general 
operating permit [or no longer intends to operate under the general operating 
permit], the permit holder must apply for another operating permit <nl>no later 
than the date of issuance<ol> [by the effective date of the revision or repeal] 
of the <nl>revised<ol> general operating permit. 
(e) Those representations in the application not affected by the revision <nl>of 
a general operating permit<ol> remain conditions under which the permit holder 
shall operate. 
(f) (No change.) 
(g) The permit holder need not comply with the representations in the [original] 
application or the [original] terms and conditions codified in the <nl>general 
operating<ol> permit that have been replaced by provisional terms and conditions 
before the granting of a new authorization to operate. 

sec.122.506. Public Notice for General Operating Permits. 
(a) Before the <nl>issuance<ol> [adoption] of any general operating permit, the 
executive director shall publish notice of the opportunity for public comment 
and hearing on the [proposed] draft general operating permit [rule] 
<nl>consistent with the requirements of this section. The executive director 
shall publish notice of a draft general operating permit in the Texas 
Register<ol>, the commission's publicly accessible electronic media, and in a 
newspaper of general circulation within each of the following metropolitan 
areas: Beaumont, Houston, and Fort Worth. Additional notice may be provided, as 
determined by the executive director, in a newspaper of largest general 
circulation in the metropolitan area appropriate for the draft general operating 
permit. The [In addition to the requirements of the Government Code, 
Administrative Procedure Act, Chapter 2001 or 2002, the] notice shall contain 
the following information: 
(1) a description of the activities involved in the [proposed] draft general 
operating permit [rule];
(2) the location and availability of copies of the [proposed] draft general 
operating permit [rule];
(3) a description of the comment procedures, including the duration of the 
public notice comment period <nl>and procedures to request a hearing<ol>; 
<nl>(4)<ol> the notification that a person who may be affected by the emission 
of air pollutants from emission units that may be authorized to operate under 
the general operating permit is entitled to request a notice and comment 
hearing; and 
[(4) the time, place, and nature of the hearing that will be held regarding the 
proposed draft general operating permit rule;] 
[(5) a brief description of the purpose of the hearing that will be held 
regarding the proposed draft general operating permit rule; and] 
<nl>(5)<ol> [(6)] the name, address, and phone number of the commission office 
to be contacted for further information.
<nl>(b)<ol> During the 30-day public notice comment period, any person who may 
be affected by emissions from emission units that may be authorized to operate 
under the general operating permit may request in writing a notice and comment 
hearing on a draft general operating permit. 
<nl>(c)<ol> [(b)] The executive director shall make a copy of the [renewal 
application,] general operating permit [,] and any required notices accessible 
to the EPA <nl>and all local air pollution control agencies with jurisdiction in 
the counties that may be affected by the general operating permit<ol> . 
<nl>(d)<ol> [(c)] The executive director shall make the [proposed] draft general 
operating permit [rule] available for public inspection throughout the comment 
period during business hours at the commission's central office. 
<nl>(e)<ol> [(d)] The executive director shall receive public comment for 30 
days after the notice of the public comment period is published. During the 
comment period, any person may submit written comments on the [proposed] draft 
general operating permit [rule]. 
<nl>(f)<ol> [(e)] The [proposed] draft general operating permit [rule] may be 
changed based on comments pertaining to whether the general operating permit 
provides for compliance with the requirements of this chapter. 
<nl>(g)<ol> [(f)] The executive director shall respond to comments consistent 
with sec.122.345 of this title (relating to Notice of Proposed Final Action) 
[and the Government Code, Administrative Procedure Act, Chapter 2001 or 2002]. 
<nl>(h)<ol> [(g)] The executive director shall provide 30 days' advance notice 
of the hearing. 

sec.122.508. Notice and Comment Hearings for General Operating Permits. 
[(a) Before the adoption of any general operating permit, the executive director 
shall hold a notice and comment hearing regarding the proposed draft general 
operating permit rule.] 
<nl>(a)<ol> [(b)] All hearings regarding general operating permits shall be 
conducted <nl>under the procedures in this section <ol> [according to the APA]. 
<nl>(b)<ol> Any person who may be affected by emissions from emission units that 
may be authorized to operate under the general operating permit may request that 
the executive director hold a hearing on a draft general operating permit. 
<nl>(c)<ol> The executive director shall decide whether to hold a hearing. The 
executive director is not required to hold a hearing if the basis of the request 
by a person who may be affected by emissions from emission units that may be 
authorized to operate under the general operating permit is determined to be 
unreasonable. If a hearing is requested by a person who may be affected by 
emissions from emission units that may be authorized to operate under the 
general operating permit, and that request is reasonable, the executive director 
shall hold a hearing.
<nl>(d)<ol> The executive director shall publish notice of a hearing on a draft 
general operating permit. The notice must be published at least 30 days before 
the date set for the hearing. The notice must include, at a minimum, the 
following: 
<nl>(1)<ol> the time, place, and nature of the hearing;
<nl>(2)<ol> a brief description of the purpose of the hearing; and 
<nl>(3)<ol> the name and phone number of the commission office to be contacted 
to verify that a hearing will be held. 
<nl>(e)<ol> At the executive director's discretion, the hearing notice may be 
combined with the notice of the opportunity for public comment required by this 
subchapter. 
<nl>(f)<ol> [(c)] Any person may submit oral or written statements and data 
concerning the [proposed] draft general operating permit [rule]. 
(1) Reasonable time limits may be set for oral statements, and the submission of 
statements in writing may be required. 
(2) The period for submitting written comments is automatically extended to the 
close of the hearing. 
(3) At the hearing, the period for submitting written comments may be extended 
beyond the close of the hearing. 
<nl>(g)<ol> [(d)] A tape recording or written transcript of the hearing shall be 
made available to the public. 
<nl>(h)<ol> [(e)] Any person who believes that any condition of the [proposed] 
draft general operating permit [rule] is inappropriate or that the preliminary 
decision to <nl> issue<ol> [adopt] the general operating permit is 
inappropriate, must raise all reasonably ascertainable issues and submit all 
reasonably available arguments supporting that position by the end of the public 
comment period.
<nl>(i)<ol> [(f)] Any supporting materials for comments submitted under 
subsection (f) [(c)] of this section shall be included in full and may not be 
incorporated by reference, unless the materials are one of the following: 
(1) already part of the administrative record in the same proceedings; 
(2) state or federal statutes and regulations; 
(3) EPA documents of general applicability; or 
(4) other generally available reference materials. 
<nl>(j)<ol> [(g)] The executive director shall keep a record of all comments and 
also of the issues raised in the hearing. This record shall be available to the 
public. 
<nl>(k)<ol> [(h)] The [proposed] draft general operating permit rule may be 
changed based on comments pertaining to whether the [proposed] draft general 
operating permit [rule] provides for compliance with the requirements of this 
chapter.
<nl>(l)<ol> [(i)] The executive director shall respond to comments consistent 
with sec.122.345 of this title (relating to Notice of Proposed Final Action) 
[and the Government Code, Administrative Procedure Act, Chapter 2001 or 2002]. 

sec.122.509. Public Announcement for General Operating Permits. 
(a) The public announcement requirements in this section apply to minor permit 
revisions to general operating permits. 
(b) The executive director shall publish an announcement of a draft general 
operating permit for a minor permit revision to a general operating permit on 
the commission's publicly accessible electronic media. The announcement shall 
contain the following: 
(1) the location and availability of the following: 
(A) the draft general operating permit; 
(B) all other relevant supporting materials in the public files of the 
commission; 
(2) a description of the comment procedures, including the duration of the 
public announcement comment period; and 
(3) name, address, and phone number of the commission office to be contacted for 
further information. 
(c) The executive director shall make a copy of the public announcement and date 
of publication accessible to the EPA and all local air pollution control 
agencies with jurisdiction in the counties that may be affected by the general 
operating permit. 
(d) The executive director shall furnish a notice of the public announcement to 
any air pollution control agency of any affected state.
(e) The executive director shall make the draft general operating permit 
available for public inspection throughout the comment period during business 
hours at the commission's central office (and at the commission's regional 
office where the site is located). 
(f) The executive director shall receive public comment for 30 days after the 
announcement of the draft general operating permit is published. During the 
comment period, any person may submit written comments on the draft general 
operating permit. 
(g) The draft general operating permit may be changed based on comments 
pertaining to whether the general operating permit provides for compliance with 
the requirements of this chapter. 
(h) Public notice requirements for general operating permits satisfy public 
announcement requirements. 
(i) The executive director shall respond to comments consistent with sec.122.345 
of this title (relating to Notice of Proposed Final Action).

sec.122.510. General Operating Permits Adopted by the Commission. 
(a) Any general operating permit in this subchapter adopted by the commission 
shall remain in effect until it is repealed under the APA.
(b) Any authorization to operate under a general operating permit in this 
subchapter adopted by the commission that is replaced with a general operating 
permit issued by the executive director shall be automatically converted to an 
authorization to operate under the general operating permit issued by the 
executive director. Provided the applicability determinations and the bases for 
the determinations affecting a site remain unchanged, the permit holder is not 
required to submit an application for the general operating permit issued by the 
executive director. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 20, 1998.
TRD-9813245
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: November 18, 1998
For further information, please call: (512) 239-1966

CHAPTER 330.Municipal Solid Waste 
SUBCHAPTER P.Fees and Reporting
30 TAC sec.sec.330.601-330.603 
The Texas Natural Resource Conservation Commission (TNRCC or commission) 
proposes amendments to sec.sec.330.601, 330.602, and 330.603, concerning fees 
and reports. 
EXPLANATION OF PROPOSED RULE. The purpose of the amendments is to delete 
sec.330.602(a)(8), which references sec.330.804. Section 330.804, which related 
to a reduction in solid waste disposal fees for landfills that beneficially use 
tire shreds, expired on December 31, 1996, and has been repealed. Section 
330.602(a)(8) also expired on December 31, 1996, but remained in the 
commission's rules. The amendments also clarify the method of reporting the 
amount of waste received at a solid waste disposal facility by defining "waste 
received for disposal" to ensure that the correct amount of fees is paid by all 
facility operators. No new requirements are proposed. 
Section 330.601 relates to the purpose and applicability of Subchapter P, which 
pertains to fees and reports. Section 330.601(b)(1), relating to the 
applicability of fees, is proposed to be amended by including a definition of 
the term "waste received for disposal" to clarify what wastes are subject to the 
payment of fees. "Waste received for disposal" means the total amount of the 
waste received by a disposal facility at the gate, excluding those wastes which 
are recycled or for which the commission may not charge a fee under Health and 
Safety Code, sec.361.013. The fee generated under sec.361.013 is based on the 
amount of weight or volume of the waste received at the gate of the facility. 
Materials that are recycled or for which the commission may not charge a fee 
under Health and Safety Code, sec.361.013, will not be considered in the 
calculation of the municipal solid waste disposal fee. The executive director 
will modify the quarterly municipal solid waste fee report form to include those 
wastes listed in Texas Health and Safety Code, sec.361.013 for which the 
commission may not charge a fee. 
Section 330.602 relates to municipal solid waste disposal fees. A proposed 
change to sec.330.602(a), relating to landfilling, deletes the last sentence in 
the opening paragraph, which recommends that waste amounts be reported in short 
tons but that reporting in cubic yards is acceptable. The deletion will 
eliminate a conflict with sec.330.603(a)(2), relating to reporting units, which 
specifically directs that the amount of waste received shall be reported in 
short tons or in cubic yards. 
A proposed change to sec.330.602(a)(2), relating to measurement options for 
landfilling, adds a sentence to emphasize that the volume or weight reported on 
the quarterly solid waste summary report must be consistent with the volume or 
weight on which tipping fees were charged, or would have been charged in the 
ordinary course of business, at the receipt of the waste at the gate. The phrase 
"or would have been charged in the ordinary course of business" is included to 
indicate that the fees are due for all waste received whether or not the 
facility charges for it, except for those wastes that are specifically exempt 
under the subchapter or by law. 
Section 330.602(a)(2)(A)-(C) has been deleted and replaced by proposed 
sec.330.602(a)(2)(A)(i)-(iii). The new provision clarifies that the recommended 
method for measuring and reporting waste received at the gate is in short tons 
and reflects the rates used by the commission to calculate the fee on waste 
reported in short tons, compacted waste reported in cubic yards, or uncompacted 
waste reported in cubic yards. 
A proposed change to sec.330.602(a)(2)(D) renames it as sec.330.602(a)(2)(B). 
A proposed change to sec.330.602(a)(3), relating to calculation of fees by the 
commission from information in the quarterly waste summary report, adds that the 
information "shall be derived from weight tickets, invoices or any other 
information deemed relevant by the executive director" to provide guidance on 
what information will be used for compilation of the quarterly report. 
The proposed deletion of sec.330.602(a)(8), relating to the reduction of fees 
for the use of tire shreds in landfills, will remove a provision which expired 
on December 31, 1996. However, tire shreds may continue to be used for 
beneficial landfill purposes. 
A proposed change to sec.330.602(b), relating to incinerators and processes for 
disposal, deletes the last sentence in the opening paragraph, which recommends 
that waste amounts be reported in short tons but that reporting in cubic yards 
is acceptable. The deletion will eliminate a conflict with sec.330.603(a)(2), 
relating to reporting units, which specifically directs that the amount of waste 
received shall be reported in short tons or in cubic yards.
A proposed change to sec.330.602(b)(2), relating to measurement options for 
incinerators and processes for disposal, adds a sentence to emphasize that the 
volume or weight reported on the quarterly solid waste summary report must be 
consistent with the volume or weight on which tipping fees were charged, or 
would have been charged in the ordinary course of business, at the receipt of 
the waste at the gate. The phrase "or would have been charged in the ordinary 
course of business" is included to indicate that the fees are due for all waste 
received whether or not the facility charges for it, except for those wastes 
that are specifically exempt under the subchapter or by law. 
Section 330.602(b)(2)(A)-(C) has been deleted and replaced by proposed 
sec.330.602(b)(2)(A)(i)-(iii). The new provision clarifies that the recommended 
method for measuring and reporting waste received at the gate is in short tons 
and reflects the rates used by the commission to calculate the fee on waste 
reported in short tons, compacted waste reported in cubic yards, or uncompacted 
waste reported in cubic yards. 
Proposed changes to sec.330.602(b)(2)(D) rename it as sec.330.602(b)(2)(B) and 
correct an error by substituting "facility" for "landfill" since the subsection 
pertains to non-landfill facilities. 
A proposed change to sec.330.602(b)(3), relating to calculation of fees by the 
commission from information in the quarterly waste summary report, adds that the 
information "shall be derived from weight tickets, invoices or any other 
information deemed relevant by the executive director" to provide guidance on 
what information will be used for compilation of the quarterly report. 
Section 330.603 relates to municipal solid waste reports. Proposed changes to 
sec.330.603)(a)(2), relating to reporting units, add "as received (compacted or 
uncompacted) at the facility" to clarify that the volume to be reported will be 
as received at the facility, compacted or uncompacted, and substitute "utilized" 
for "available" with regard to the use of scales for weighing waste received to 
avoid the questions of what is considered available or not available.
Proposed changes to sec.330.603(a)(6) and sec.330.603(b)(5), relating to method 
of submission of reports, delete the phrase "and delivered and mailed" because 
it was already stated in the same sentence. 
FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations Division, has 
determined that for the first five-year period the sections as proposed are in 
effect, there are no significant fiscal implications anticipated for state or 
local governments as a result of administration or enforcement of the section. 
Clarification of the methods of reporting of solid waste disposal activity may 
result in some changes in revenue from disposal fees which are based on the 
reports; however, any potential effects on revenues are not anticipated to be 
significant and will have no effect on amounts of revenue appropriated or 
budgeted by the commission. The effect on local governments will be similar to 
those effects on any person operating a municipal solid waste facility subject 
to these rules. Local governments that modify current reporting practices in 
order to be consistent with the proposed rules may realize some effect on the 
amounts of waste reported and the fees assessed. Any changes in the amounts of 
waste reported will have an impact equivalent to $1.25 per ton. These potential 
fiscal implications for any one facility operated by a local government are not 
anticipated to be significant. 
PUBLIC BENEFIT. Mr. Minick has also determined that for each year of the first 
five years the sections as proposed are in effect, the public benefit 
anticipated as a result of enforcement of and compliance with the amended 
sections will be increased consistency of commission regulations with statutory 
authority and the assurance that all municipal solid waste disposal facility 
operators, and consequently the waste generators, are paying an equitable share 
of disposal fees for the support of state solid waste management programs. There 
are no other economic costs to any person, including any small business, 
required to comply with these sections as proposed. 
ECONOMIC ANALYSIS FOR SMALL BUSINESSES. The commission has reviewed the proposed 
rulemaking in light of Texas Government Code, sec.2006.002 requirements, and has 
determined that there is no economic effect on small businesses because the 
proposed rulemaking only provides clarification of existing rules. The only 
small businesses that may be affected by the proposed rule amendments are any 
operators of municipal solid waste disposal or processing facilities who may be 
underreporting or overreporting the amount of waste received for disposal and 
thus underpaying or overpaying the disposal fees owed to the state. The proposal 
does not impose any new requirements. 
DRAFT REGULATORY IMPACT ANALYSIS. The commission has reviewed the proposed 
rulemaking in light of the regulatory analysis requirements of Texas Government 
Code, sec.2001.0225, and has determined that the rulemaking is not subject to 
sec.2001.0225 because 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). Specifically, the proposal is not 
directly related to and does not result in any decrease in the protection of the 
environment or human health; rather, it only clarifies a requirement of state 
law. The proposal clarifies the process for the calculation of municipal solid 
waste fees as authorized by Texas Health and Safety Code, sec.361.013. The 
proposal is not the result of any federal law or mandate and is not the result 
of any delegation agreement or contract with an agency of the federal 
government. The purpose of the amendments is to delete sec.330.602(a)(8), which 
references sec.330.804. Section 330.804, which related to a reduction in solid 
waste disposal fees for landfills that beneficially use tire shreds, expired on 
December 31, 1996. The amendments would also clarify the method of reporting the 
amount of waste received at a solid waste disposal facility to ensure that the 
correct amount of fees is paid by all facility operators.
TAKINGS IMPACT ASSESSMENT. The commission has prepared a Takings Impact 
Assessment for these rule amendments pursuant to Texas Government Code 
Annotated, sec.2007.043. The following is a summary of that assessment. The 
specific purpose of the amendments is to repeal an expired provision pertaining 
to the reduction of fees for the use of tire shreds for engineering purposes in 
landfill construction and to clarify the method of reporting the amount of waste 
received at a solid waste disposal facility to ensure that the correct amount of 
fees is paid by all facility operators. The rule amendments will substantially 
advance the specific purpose by deleting the expired provision and explicitly 
explaining that the calculation of the amount of waste received for disposal fee 
purposes must be consistent with the weight or volume of waste used as a basis 
for charging the tipping fee upon receipt of the waste at the facility. 
Promulgation and enforcement of these rule amendments will not affect or create 
a burden on private real property because the amendments only provide 
clarification to municipal solid waste facility operators on how to properly 
calculate and report the amounts of waste received for disposal.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW. The commission has reviewed the 
proposed rulemaking and found that the rules are 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 affect any 
action/authorization identified in Coastal Coordination Act Implementation 
Rules, 31 TAC sec.505.11. Therefore, the proposed rule amendments are not 
subject to the CMP. 
SUBMITTAL OF COMMENTS. Written comments regarding this proposal may be mailed to 
Bettie Bell, TNRCC Office of Policy and Regulatory Development, MC 205, P.O. Box 
13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should 
reference Rule Log Number 97185-330-WS. Comments must be received by 5:00 p.m., 
October 5, 1998. For further information concerning this proposal, please 
contact Hector Mendieta, Waste Policy and Regulations Division, (512) 239-6694. 
STATUTORY AUTHORITY. The amendments are proposed under Texas Water Code 
sec.5.103 which provides the commission with the authority to adopt any rules 
necessary to carry out its powers and duties under the Texas Water Code and 
other laws of the State of Texas; and the Solid Waste Disposal Act (Act), Texas 
Health and Safety Code, sec.361.024, which provides the commission with the 
authority to adopt rules consistent with the policy and purposes of the Act, and 
sec.361.013(a) which establishes the rates and basis for solid waste disposal 
fees to be charged.
The proposed amendments implement Health and Safety Code, Chapter 361.

sec.330.601.Purpose and Applicability.
(a) (No change.) 
(b) Applicability. 
(1) Fees. Each operator of a municipal solid waste disposal facility or process 
for disposal is required to pay a fee to the commission based upon the amount of 
waste received for disposal. <nl>For the purpose of this subchapter, "waste 
received for disposal" means the total amount of the waste received by a 
disposal facility at the gate, excluding only those wastes which are recycled or 
exempted from payment of fees under this subchapter or by law. <ol> For the 
purpose of these sections, landfills, waste incinerators, and sites used for 
land treatment or disposal of wastes, sites used for land application of sludge 
or similar waste for beneficial use, composting facilities, and other similar 
facilities or activities are determined to be disposal facilities or processes. 
Recycling operations or facilities that process waste for recycling are not 
considered disposal facilities. Source separated yard waste composted at a 
composting facility, including a composting facility located at a permitted 
landfill, is exempt from the fee requirements set forth and described in these 
sections. For the purpose of these sections, source separated yard waste is 
defined as leaves, grass clippings, yard and garden debris and brush, including 
clean woody vegetative material not greater than six inches in diameter, that 
results from landscape maintenance and land-clearing operations which has been 
separated and has not been commingled with any other waste material at the point 
of generation. The commission will credit any fee payment due under this 
subchapter for any material received and converted to compost product for 
composting through a composting process. Any compost or product for composting 
that is not used as compost and is deposited in a landfill or used as landfill 
daily cover is not exempt from the fee. 
(2) - (4) (No change.) 

sec.330.602.Fees.
(a) Landfilling. Each operator of a facility in Texas that disposes of municipal 
solid waste by means of landfilling, including landfilling of incinerator ash, 
is required to pay a fee to the commission for all waste received for disposal. 
The fee rate for waste disposed of by landfilling is dependent upon the 
reporting units used. [It is recommended that waste amounts be measured and 
reported in short tons (2,000 pounds); however, reporting by cubic yards is 
acceptable.] 
(1) (No change.) 
(2) Measurement options. <nl>The volume or weight reported on the quarterly 
solid waste summary report must be consistent with the volume or weight on which 
tipping fees were charged, or would have been charged in the ordinary course of 
business, at the receipt of the waste at the gate.<ol> 
<nl>(A)<ol> <nl>The recommended method for measuring and reporting waste 
received at the gate is in short tons. The facility operator must accurately 
measure and report the number of cubic yards or tons of waste received at the 
gate. <ol>
<nl>(i)<ol> <nl>The fee for waste reported in short tons will be calculated by 
the commission at an amount equal to $1.25 per ton.<ol>
<nl>(ii)<ol> <nl>The fee for compacted waste reported in cubic yards will be 
calculated by the commission at an amount equal to $0.40 per cubic yard. <ol>
<nl> (iii) <ol> <nl>The fee for uncompacted waste reported in cubic yards will 
be calculated by the commission at an amount equal to $0.25 per cubic yard.<ol>
[(A) The recommended method for measuring and reporting waste received for 
disposal is in short tons. The fee for waste reported in short tons will be 
calculated by the commission at an amount equal to $1.25 per ton.]
[(B) If scales are not available for landfill use to determine the weight of 
compacted waste received, the facility operator must accurately measure and 
report the number of cubic yards of such waste received for disposal. The fee 
for compacted waste reported in cubic yards will be calculated by the commission 
at an amount equal to $0.40 per cubic yard.] 
[(C) If scales are not available for landfill use to determine the weight of 
uncompacted waste received, the facility operator must accurately measure and 
report the number of cubic yards of such waste received for disposal. The fee 
for uncompacted waste reported in cubic yards will be calculated by the 
commission at an amount equal to $0.25 per cubic yard.] 
<nl>(B)<ol> [(D)] If a landfill operator chooses to report the amount of waste 
received utilizing the population equivalent method authorized in 
sec.330.603(a)(3) of this title (relating to Reports), the fee for such waste 
received shall be calculated by the commission at an amount equal to $1.25 per 
ton. 
(3) Fee calculation. The fee shall be calculated by the commission using 
information obtained from the quarterly solid waste summary report<nl>, which 
shall be derived from weight tickets, invoices or any other information deemed 
relevant by the executive director.<ol> A billing statement will be generated 
quarterly by the commission and forwarded to the applicable permittee/registrant 
or a designated representative. 
(4) - (7) (No change.) 
[(8) Fee Reduction. The fee may be reduced in accordance with sec.330.804 of 
this title (relating to The Use of Tire Shreds in Landfills) through December 
31, 1996, upon which date this paragraph will expire.] 
(b) Incinerators and processes for disposal. Each operator of a facility that 
disposes of or processes municipal solid waste for disposal by means other than 
landfilling is required to pay a fee to the commission for all waste received 
for processing or disposal. Facilities and/or processes included in this 
category include, but are not limited to, incineration; composting; application 
of sludge, septic tank waste, or shredded waste to the land; and similar 
facilities or processes. Not included as a process for disposal is land 
application of waste that has already been properly composted in one of the 
facilities named. [It is recommended that waste amounts be measured and reported 
in short tons (2,000 pounds); however, reporting by cubic yards is acceptable.] 
(1) (No change.) 
(2) Measurement options. <nl>The volume or weight reported on the quarterly 
solid waste summary report must be consistent with the volume or weight on which 
tipping fees were charged, or would have been charged in the ordinary course of 
business, at the receipt of the waste at the gate.<ol> 
<nl>(A)<ol> <nl> The recommended method for measuring and reporting waste 
received at the gate is in short tons. The operator must accurately measure and 
report the number of cubic yards or tons of waste received.<ol>
<nl>(i)<ol> <nl> The fee for waste reported in short tons will be calculated by 
the commission at an amount equal to $0.62 and one half cent per ton. <ol>
<nl>(ii)<ol> <nl> The fee for compacted waste reported in cubic yards will be 
calculated by the commission at an amount equal to $0.20 per cubic yard. <ol>
<nl>(iii)<ol> <nl> The fee for uncompacted waste reported in cubic yards will be 
calculated by the commission at an amount equal to $0.12 and one half cent per 
cubic yard. <ol>
[(A) The recommended method for measuring and reporting waste received for 
disposal is in short tons. The fee for compacted waste reported in short tons 
will be calculated by the commission at an amount equal to $0.62 and one half 
cent per ton.]
[(B) If scales are not available for facility use to determine the weight of 
compacted waste received, the operator must accurately measure and report the 
number of cubic yards of such waste received. The fee for compacted waste 
reported in cubic yards will be calculated by the commission at an amount equal 
to $0.20 per cubic yard.] 
[(C) If scales are not available for facility use to determine the weight of 
uncompacted waste received, the facility operator must accurately measure and 
report the number of cubic yards of such waste received. The fee for uncompacted 
waste reported in cubic yards will be calculated by the commission at an amount 
equal to $0.12 and one half cent per cubic yard.] 
<nl>(B)<ol> [(D)] If a <nl>facility <ol> [landfill] operator chooses to report 
the amount of waste received utilizing the population equivalent method 
authorized in sec.330.603(a)(3) of this title (relating to Reports), the fee 
shall be calculated by the commission at an amount equal to $0.62 and one half 
cent per ton.
(3) Fee calculation. The solid waste fee shall be calculated by the commission 
using information obtained from the quarterly solid waste summary report<nl>, 
which shall be derived from weight tickets, invoices or any other information 
deemed relevant by the executive director. <ol> A billing statement will be 
generated quarterly by the commission and forwarded to the applicable 
permittee/registrant or a designated representative. 
(4) - (7) (No change.) 
(c) (No change.)

sec.330.603.Reports.
(a) Disposal facilities and processes. 
(1) (No change.) 
(2) Reporting units. The amount of waste received for processing or disposal 
shall be reported in short tons (2,000 pounds) or in cubic yards <nl>as received 
(compacted or uncompacted) at the gate. <ol> If accounting of the waste is 
recorded in cubic yards, then separate accounting must be made for waste that 
comes to the facility in open vehicles or without compaction, and waste that 
comes to the facility in compactor vehicles. If scales are not <nl>utilized <ol> 
[available] and accounting of the waste received is in cubic yards, gallons, or 
drums then those volumetric units may be converted to tons for reporting 
purposes, using the conversion factors set forth in subparagraphs (A) and (B) of 
this paragraph.
(A) - (B) (No change.) 
(3) - (5) (No change.) 
(6) Method of submission. The required report shall be delivered or mailed to 
the Texas Natural Resource Conservation Commission [and delivered or mailed] to 
the return address designated by the commission in the billing statement 
distributed quarterly. 
(7) (No change.) 
(b) Facilities and processes not for disposal. Facilities and processes not for 
disposal (as defined in sec.330.602(c) of this title (relating to Fees)) are 
subject to reporting requirements but are not required to pay a fee. 
(1) - (4) (No change.) 
(5) Method of submission. The required report shall be delivered or mailed to 
the Texas Natural Resource Conservation Commission [and delivered or mailed] to 
the return address designated by the commission in the billing statement 
distributed quarterly. 
(6) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 24, 1998.
TRD-9813426
Margaret Hoffman
Director, Environmental Law
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 239-6087

TITLE 34. PUBLIC FINANCE
PART III. Teacher Retirement System of Texas
CHAPTER 41. Insurance
34 TAC sec.41.13
The Teacher Retirement System of Texas (TRS) proposes an amendment to sec.41.13 
concerning participation in the Texas Public School Employees Group Insurance 
Program by public school districts. The rule amendment as proposed was adopted 
on an emergency basis and published in the August 14, 1998, issue of the Texas 
Register (23 TexReg 8319). The proposed amendment deletes language that 
prohibits a school district that did not elect to participate in TRS-Care on 
September 1, 1997, to begin participation in TRS-Care until September 1, 1999 or 
later. This subsection of the rule was intended to promote administrative 
efficiency by requiring districts to make elections to participate during 
certain times. This subsection of the rule will be meaningless after September 
1, 1998 as coverage may begin only on September 1 of a school year and only one 
school district applied for coverage in a timely manner. That one school 
district was allowed to enroll based on the emergency adoption of the rule 
amendment.
Ronnie Jung, Chief Financial Officer, has determined that for each year of the 
first five years the section as amended will be in effect, there will be no 
fiscal implications to state or local governments as a result of enforcing or 
administering the section. 
Ronnie Jung, Chief Financial Officer, has determined that the public benefit 
will be the deletion of an outdated and unnecessary part of a rule and that 
there will be no anticipated economic cost to the public, small businesses, or 
to persons who are required to comply with the section as proposed for each year 
of the first five years the proposal will be in effect. 
Comments may be submitted to Charles L. Dunlap, Executive Director, 1000 Red 
River, Austin, Texas 78701, (512) 397-6400. 
The amendment is proposed under the Government Code, Chapter 825, sec.825.102, 
which authorizes the Teacher Retirement System to adopt rules for the 
administration of the funds of the retirement system. In addition, sec.sec.5 and 
7A of Article 3.50-4 of the Insurance Code specifically authorize the Board of 
Trustees to adopt rules needed to implement the insurance program and to 
determine the eligibility requirements for participation by a school district. 
The Insurance Code, Article 3.50-4 is affected by this proposed amendment. 

sec.41.13. Participation in the Texas Public School Employees Group Insurance 
Program by Public School Districts.
(a)-(c) (No change.) 
[(d) Nonparticipation by a school district. An eligible school district which 
has elected not to participate in the program for the plan year starting on 
September 1, 1997, will be ineligible to participate in the program until 
September 1, 1999.] 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 21, 1998.
TRD-9813402
Charles Dunlap
Executive Director
Teacher Retirement System of Texas
Proposed date of adoption: October 23, 1998
For further information, please call: (512) 391-2115

PART XI. Fire Fighters' Pension Commission
CHAPTER 301.Rules of the Texas Statewide Emergency Services Retirement Fund
34 TAC sec.301.1, sec.301.2
The Office of the Fire Fighters' Pension Commissioner (the office) proposes 
amendments to sec.301.1, concerning definitions, and sec.301.2, concerning 
scope, of the rules and regulations of the Texas Statewide Emergency Services 
Retirement Fund. Section 301.1(4)(A) is being amended to clarify the definition 
of an emergency. Section 301.1(4)(B) is being amended to clarify that beginning 
January 1, 1998, the number of drills per year was changed to the number of 
drill hours per year, to delete unnecessary references to statute and to remove 
inapplicable language. Section 301.1(4)(F) is being amended to clarify that a 
member must attend only 40% of the number of drills required by law and to 
provide that members cannot be excused from attending less than the minimum 
number of drills required by Texas Civil Statutes, Article 6243e.3. Section 
301.1(4)(I) is being amended to clarify that in decisions by the local boards 
regarding what constitutes an emergency and excused absences from emergencies, a 
member cannot be excused from attending less than the minimum number of 
emergencies required by Article 6243e.3. The definition of leave of absence in 
sec.301.1(5) is being amended to clarify that during leave of absence caused by 
military duty, no dues are required to be paid, and for leave of absence caused 
by temporary disability, dues must be paid. The definition of military duty in 
sec.301.1(6) is being amended to apply to members called to active military duty 
for 30 or more days. This amendment is proposed to clarify that the military 
duty must be active and must exceed 29 days. The amendment deletes the 
requirement that the military duty be during a war or national emergency. The 
proposed definition of military duty is more descriptive of the type military 
duty to which a participating member may be called in the post-Cold War era. 
Section 301.2(j)(3), concerning the applicability of the Fair Labor Standards 
Act to the Statewide Emergency Services Retirement Fund, is being amended to 
delete narrative explaining the background history of the applicability of the 
Fair Labor Standards Act. The proposed rule simply provides that participation 
in the Senate Bill 411 system (the Statewide Emergency Services Retirement Fund) 
is affected by the Fair Labor Standards Act, and its attendant regulations, and 
that questions concerning the applicability of the Fair Labor Standards Act 
should be directed to a participating department's attorney. The purpose of the 
proposed amendment is to remove the office from the position of being called on 
for legal advice concerning federal law by departments participating in the 
Statewide Emergency Services Retirement Fund. 
Morris E. Sandefer, Commissioner, has determined that for the first five-year 
period the proposed rules are in effect there will be no fiscal implications to 
state or local government as a result of administering the rules.
Mr. Sandefer also has determined that for each year of the first five years the 
proposed rules are in effect, the public benefit is that the amended definitions 
can be more easily understood by members and participating departments in the 
Statewide Emergency Services Retirement Fund. Additionally, the proposed 
amendment to the definition of military leave may provide coverage to a greater 
number of members than are covered by the current definition of military leave. 
The public may also benefit from the clarification that participating 
departments having questions relating to the effect of the Fair Labor Standards 
Act on the Statewide Emergency Services Retirement Fund should direct those 
questions to the department's counsel for advice. No adverse economic impact is 
anticipated on small businesses as a result of the proposed rules.
Written comments on the proposed rules may be submitted to Morris E. Sandefer, 
Commissioner, Office of the Fire Fighters' Pension Commissioner, P.O. Box 12577, 
Austin, Texas 78711, fax number 512/936-3480. Written comments must be received 
within 30 days of the date of publication of the proposed rules in the Texas 
Register. 
The rules are proposed under Texas Civil Statutes, Article 6243e.3, sec.21(b), 
which requires the Board of Trustees of the office to establish rules for the 
administration of the Statewide Emergency Services Retirement Fund. 
The statute affected by the proposed rules is Texas Civil Statutes, Article 
6243e.3.

sec.301.1. Definitions. 
The following words and terms, when used in this part, shall have the following 
meanings, unless the context clearly indicates otherwise.
<nl>(1)<ol> Active--Refers to a member so determined by the local board based on 
regular availability until terminated. A member emergency services department 
must pay dues on individual members even if they do not attend enough 
emergencies, fires and drills to earn time toward retirement, because the fund 
is responsible for his/her death and/or disability benefits even if he/she only 
attends one emergency or drill a year. This obligation is terminated when the 
department notifies the agency of the member's termination from the pension 
system. 
<nl>(2)<ol> Dependent-- 
(A) Effective September 1, 1991, an unmarried child, natural or adopted, who is 
less than 18 years of age; is less than 19 years of age and a full-time student 
at an elementary or secondary school; or became disabled before the child's 22nd 
birthday and remains disabled. 
(B) Until September 1, 1991, a dependent was defined by the U.S. Internal 
Revenue Code, Subtitle A, Chapter 1B Part V, Section 152, and any subsequent 
amendments. Any dependents who were eligible to receive benefits prior to 
September 1, 1991, are defined by the U.S. Internal Revenue Code. See sec. 
301.3(e)(11)(B) of this title (relating to Determination of Costs and/or 
Benefits) for required forms. 
<nl>(3)<ol> Disabled--Refers to a member decided disabled by the local board. 
The causative disability may include mental impairment. Such disability shall be 
deemed ceased: 
(A) Upon a doctor's determination that the member can perform his/her duties as 
an emergency service member or the duties of any other occupation for which the 
person is reasonably suited by education, training, and experience. Both 
criteria must be met to claim a disability. 
(B) In the case of a student, upon the student's return to classes. 
(C) Effective September 1, 1989, there was no longer an off-duty disability. 
Off-duty disabilities incurred before that date were still eligible for those 
benefits. 
<nl>(4)<ol> Emergencies and Drills-- 
(A) Emergency--An emergency <nl>as<ol>determined by the local board 
[to]<nl>should<ol> be included on the Annual Report. The local board may 
substitute the duties performed by the member for actual emergencies. 
(B) [Number of drills per year will be changed to number of drill hours per year 
effective]<nl>Effective<ol> January 1, 1998, [sec. 21(b), Duties of the State 
Board of Trustees, in the pension fund law book. The department's calendar year 
1997 annual report will use 24 drills per year. ]<nl>the number of drills per 
year was changed to the number of drill hours per year.<ol> 
(C) A member who misses a drill(s) or drill hours while in recognizable 
certified training or education, may count that training or education for that 
week's drill if the local board approves. 
(D) If a department does not hold at least 24 drills 48 hours (effective January 
1, 1998) in a calendar year, no member will receive credit toward retirement for 
the year. 
(E) Until January 1, 1981, a member had to make 60% of the drills. 
(F) A department may hold more drills (or drill hours) than required by law, but 
a member only has to make 40% of the number required[.] <nl>by law.<ol> All 
members of the department must attend drills. <nl> Members cannot be excused 
from attending less than the minimum number of drills required by Article 6243 
e.3, Section 1(1), Qualified Service.<ol>
(G) A department must schedule drills and drill hours (effective January 1, 
1998) so that members entering or leaving the department during the calendar 
year have the ability to attend the required percentage during the calendar 
year. 
(H) Emergencies must be prorated for members entering and leaving the department 
during the calendar year. 
(I) All decisions by the local board regarding what constitutes an emergency, 
excused absences from emergencies, and all other pension matters should be 
documented in the local board's meeting minutes and kept on file by the local 
board. <nl>Members cannot be excused from attending less than the minimum number 
of emergencies required by Article 6243e.3, Section 1(1), Qualified Service.<ol> 
<nl>(5)<ol> Leave of absence--There is no leave of absence under Senate Bill 
411. A member is either active and dues are being paid; or the member is 
terminated and no dues are paid. The suggested procedure is to terminate the 
member if the absence is for an extended period of time and reinstate when the 
member returns to the pension system. The exception is absence caused by 
military duty which does not affect qualified service[.]<nl>and during which no 
dues are being paid, and absence caused by temporary disability, during which 
dues must be paid.<ol> 
<nl>(6)<ol> Military Duty--Called for <nl>active<ol>military duty [during a war 
or national emergency]<nl>for 30 days or more <ol>. The member is given credit 
for emergencies and drills and the governing body does not have to pay dues 
during that time. If the member is killed during the time he/she is called up, 
the system pays the lump sum off-duty death benefits to any beneficiary and a 
monthly pension to the spouse if applicable. 
<nl>(7)<ol> Monetary remuneration--Refers to payment to the member by coin, 
currency, check or money order, not including the furnishing of water, and not 
including compensation for expenses incurred for the purpose of attending drills 
and fires. 
<nl>(8)<ol> On-duty death--Refers to a death incurred in the course of the 
performance of duties as a member. 
<nl>(9)<ol> On-duty disability--Refers to a disability incurred in the course of 
the performance of duties as a member. 
<nl>(10)<ol> Physical Fitness--Effective September 1, 1991, sec.8, Certification 
of Physical Fitness, of the pension fund law, Texas Statewide Volunteer Fire 
Fighters' Retirement Act, was amended so that those members of the department 
not physically fit to participate in emergency services could remain in the 
system and earn credit toward retirement. The local board decides on the type of 
physical it feels meets the department's needs. 
(A) The physician's certification of physical fitness remains in department 
files unless requested by the commissioner. 
(B) The local board must notify the agency if a member cannot participate in 
emergency services. 
(C) A member who cannot participate in emergency services should be assigned to 
support duties to earn credit on the Annual Report.
(D) The state board recommends updating physicals at least every five years. 
(E) Effective September 1, 1997, sec. 2A, Membership, paragraphs (b)(4) and (c) 
in the pension fund law book added that a person is not a member of the pension 
system if the person does not receive a certification of physical fitness or 
assignment to support duties under sec. 8, Certification of Physical Fitness, of 
the pension fund law, Texas Statewide Volunteer Fire Fighters' Retirement Act. 
This does not mean that the local board of trustees may ignore sec.8, 
Certification of Physical Fitness, of the pension fund law, Texas Statewide 
Volunteer Fire Fighters' Retirement Act and maintain a department of emergency 
services personnel who do not have physicals and are not in the pension system. 
Any person over the age of 18 who is not retired from the pension system, and 
who does not receive a certification of physical fitness or assignment to 
support duties, must be terminated from the department.
<nl>(11)<ol> Temporary disability-- 
(A) A disability which, in the opinion of a physician, may be subject to 
improvement although in the interim rendering the member unable to perform 
his/her duties as a member or the duties of any other occupation for which the 
person is reasonably suited by education, training, and experience. 
(B) If the doctor's statement says that a disability is permanent or will last 
more than three months, the member does not have to submit a new statement every 
three months. It is the responsibility of the local board to keep this office 
informed of the status of the disability. The governing body will continue to 
pay dues on a member on temporary disability. No dues are paid for a member on 
permanent disability since that person is considered to be on a disability-
retirement.

sec.301.2. Scope.
(a) Applicability. Until September 1, 1997, the retirement fund (Senate Bill 
411) applied to any political subdivision that contains an entire rural fire 
prevention district. It also applied when an entire rural fire prevention 
district was contained within more than one governing body, in which case the 
public agencies made equal contributions. The public agency could be a town. 
(1) If a rural fire prevention district was located within a county, the county 
was the political subdivision. If no rural fire prevention district was located 
within a particular county, the statute was not applicable to that county. 
(2) A school district constituted a political subdivision. 
(3) If an unincorporated town was located in a county which had no rural fire 
prevention district, there was no political subdivision to contribute to the 
fund and the statute was not applicable. 
(4) Where a water district was located within the unincorporated town, the water 
district could constitute the political subdivision, if a rural fire prevention 
district was located wholly within it. 
(5) If both county and water district met the definition, then both could be 
required to contribute. 
(6) If the rural fire prevention district was situated within the town, the 
district was a political subdivision required to contribute. 
(b) Effective September 1, 1997, the definition of governing body was any 
political subdivision of the state. If the participating department is situated 
in more than one political subdivision, the governing bodies of such political 
subdivisions shall contribute equally toward a total of at least $12 for each 
member for each month of service. 
(c) Governing Body/Emergency Services Districts. 
(1) An emergency services district which is composed of members of a department 
which has been in Texas Local Fire Fighters' Retirement Act (TLFFRA House Bill 
258) must inform the commission of this at the time they request entrance in 
Senate Bill 411. Being an emergency services district does not negate the legal 
obligations which have arisen as a result of being a member of TLFFRA. 
(2) By law if a department is more than one political subdivision each shall 
contribute equally toward the cost for each member's service. It is the 
responsibility of the department and the governing bodies to inform the 
commissioner if this section of the law applies.
(3) An emergency services district which is composed of the members of a city 
emergency services department which has been in TLFFRA cannot be forced to 
assume the liability of the TLFFRA payees. If the district refuses to accept the 
payment of this liability the district cannot be in Senate Bill 411. 
(4) A department which enters the system with the city as governing body and 
subsequently becomes governed by an emergency services district will, for 
pension purposes, continue with the city as governing entity until such time as 
the district enters into a contract with the pension system. The district and 
the city may contribute equally toward the total if applicable.
(d) Exemption.
(1) This retirement fund need not apply to a public agency whose governing body 
exempted itself from its operation within 60 days of August 28, 1977. The 
requirement to provide for participation in the fund pertains to all other 
public agencies whose governing bodies did not choose to exempt themselves prior 
to October 28, 1977. 
(2) If a governing body acts to rescind its order exempting itself from the 
Texas Statewide Volunteer Fire Fighter's Retirement Act (the Act), its action 
will amount to a repeal; and the governing body will begin making its 
contributions at the time the recession becomes effective. 
(3) If the public agency's governing body did not exempt itself, the emergency 
services department will be admitted to the pension system after they vote to 
enter the system as required by sec. 10, Entering The Pension System; Required 
Election. The department's entrance date cannot pre-date the election. The 
governing body will be held liable for funding as though they rescinded the 
exemption. 
(e) Effective September 1, 1997, a department which is participating in Senate 
Bill 411 at that date has 60 days to exempt itself from providing additional 
coverage to other volunteer or auxiliary emergency service personnel who were 
not eligible for coverage under the original provisions of the Act. 
(1) This exemption must be exercised within 60 days after the general effective 
date of this Act. 
(2) Governing bodies who elect to cover these members will provide proof of 
service as required by the Fire Fighter's Pension Commission. 
(3) Governing bodies must pay for the emergency services personnel's 
contributions (dues) at this time, but in this instance only it will be straight 
cost without the actuarial factor (interest) added in. 
(4) The governing body will pay the cost in one lump sum payment. If this cost 
cannot be paid in full in one lump sum payment at the time of contracting for 
coverage, any unpaid costs may be paid in full within three years or may be made 
in a manner to which the commissioner agrees. 
(5) This service will be considered future service if it occurred after the 
department's entrance date in the system. 
(f) Eligibility of a Public Agency. A department, to enter into this retirement 
fund, must have ten active members. A subsequent drop of the number of active 
members will not affect eligibility. 
(g) Member Departments Which Cease to Exist. The commissioner shall continue to 
administer benefits of the pension system for members and retirees who performed 
service for a former member fire department that has not withdrawn from the 
pension system under sec. 12, Withdrawing from the Pension System, of this act 
but has ceased to exist. The governing body will perform the duties of the local 
board. (Became part of the pension fund law September 1, 1993, sec. 12(a), 
Withdrawing from the Pension System.) 
(h) Merger. The decision to merge into the Senate Bill 411 plan may be made by a 
vote of the qualified members who participated in the emergency services 
department for at least one year. Each qualified member is entitled to cast one 
vote for each full year of participation. The governing body of the merging 
public agency is to provide verification of service with the Fire Fighters' 
Pension Commission as required by the commission. If no record of prior service 
exists with the Fire Fighters' Pension Commission, the local board is to verify 
service for each prospective member. This verification is to be signed by the 
chief or head of the department and the representatives of the local board, 
notarized and returned to the commission office. 
(i) Non-TLFFRA Departments. Entities which have not been in any pension system 
prior to entering Senate Bill 411 follow the same procedures as entities in the 
Texas Local Fire Fighters' Retirement Fund (TLFFRA, formerly House Bill 258) on 
voting to enter this pension system and follow the same rules and regulations as 
departments merging into this system from TLFFRA.
(j) Individual Eligibility. 
(1) Status. Qualified members of a department, whether involved in prevention, 
suppression, investigation, maintenance, or clerical work are eligible to 
participate in the retirement fund provided, however, that the member's 
eligibility to join is dependent on the status of the public agency under whose 
control he/she is. The prospective member cannot override the public agency's 
status simply by the payment of contributions. The following are specifically 
barred as members of the pension system: 
(A) If the person is less than 18 years of age. 
(B) If the person is retired under this Act (after September 1, 1989), whether 
or not the person continues to participate in emergency related functions for 
the department from which the member retired. (For the exception see paragraph 
(6)(A)(ii) of this subsection.) 
(C) If the person is a probationary member for whom dues are not being paid. The 
maximum period during which dues are not paid is six months. Entry dates cannot 
be back dated to cover the probationary period unless all prospective members 
are covered from the date entered fire department. 
(D) If the person does not receive a certification of physical fitness or 
assignment to support duties, that person cannot be a member of the department. 
(2) EMS. Until September 1, 1997, members of the local EMS Service could be 
included in the pension system if they meet all three of the following criteria: 
(A) If they were considered by the governing entity to be part of the fire 
department. 
(B) They were volunteers. 
(C) They attended the fire drills as specified in sec. 1, paragraph (1), of the 
pension fund law. 
(D) Effective September 1, 1997, the law was amended to allow "auxiliary 
employees." It is the responsibility of the local Board of Trustees to determine 
that its members comply with the definitions for volunteer and auxiliary members 
as outlined by the law. 
(3) Fair Labor Standards Act (FLSA). <nl>Participation in the Senate Bill 411 
system is affected by the Federal Fair Labor Standards Act and regulations 
implemented there under. Questions concerning the effect of FLSA on the 
department should be directed to its attorney.<ol> 
[(A) The Federal Fair Labor Standards Act of 1985 specifically defines who a 
volunteer is and what this volunteer can do. According to FLSA, when a 
department has five or more paid members, those five or more paid members cannot 
serve as volunteers in the department for which they receive compensation. In 
other words, if a member is a fully paid member, he/she cannot return to work in 
his/her time off as a volunteer in that department.] 
[(B) Since Senate Bill 411 was originally designed specifically for fire 
fighters who serve without monetary remuneration effective July 1, 1989, those 
participants in the Senate Bill 411 retirement fund who were serving as paid 
fire fighters in fire departments which had five or more paid members, could no 
longer participate in the Senate Bill 411 pension system. After this date, when 
a department hired its fifth paid member, all of the paid members had to be 
dropped effective that date. It was the responsibility of the local board to 
notify this office when this occurred. If the fire fighter was vested in the 
Senate Bill 411 system, he/she would receive the retirement due him/her upon 
application at age 55.]
[(i) These provisions of FLSA still apply to volunteer members of the pension 
system.] 
[(ii) If there are over four fully paid, non-auxiliary members in a department, 
the fully paid members cannot participate in Senate Bill 411 as volunteers for 
that department.] 
[(iii) See sec. 301.2(d) of this title (relating to Scope) for the crediting of 
service for members affected by the changes in the law. ] 
(4) Start of Membership. 
(A) During a probationary period of service before becoming a regular member of 
a member department, if the governing body of the department is not making 
contributions for the probationary service, then that person is not eligible for 
benefits under this Act.
(B) A department may have a probationary period of up to six months during which 
dues are not paid for the member. Dues will be charged based on the date entered 
pension system as listed on the Personnel Form 502, as long as it is not more 
than six months from date entered member department. 
(C) Personnel Form 502 must be submitted for new members at the end of the 
probationary period. Failure to do so could mean denial of benefits. 
(D) If there is a probationary period, it should be the same length of time for 
everyone in the department. 
(E) If the date entered pension system is more than six months from date entered 
department, the commission will change date entered pension system on the Form 
502 to within six months of date entered department and send a corrected copy to 
the department. Dues will be charged from the date established by the 
commission. 
(5) Credit. 
(A) Under TLFFRA law until September 1, 1993, prior to a department's entrance 
in Senate Bill 411, any fire fighter who was terminated from the department for 
one or more years lost any service earned before that period unless the local 
board ruled that the interruption in service was through no fault of the fire 
fighter. 
(B) The department is not charged for non-qualifying years on the cost study. 
Effective September 1, 1989, buy-back years had to comply with minimum drill and 
fire requirements to qualify. 
(C) Once a member of this retirement fund, the member is not penalized for 
nonconsecutive periods of service. 
(6) Dual Benefits. 
(A) Death and Retirement. 
(i) A member who performs qualified service for more than one department under 
this Act may become eligible to receive service retirement benefits for service 
for each department, but, if the person dies while a member of both departments, 
the member's beneficiary must choose between an on-duty and off-duty benefit if 
applicable. 
(ii) In order to be eligible for retirement benefits from two or more different 
departments, the member's service in the other departments must start before 
retirement from the primary department and he/she must start as a new member 
(without transferring time from the other department). See sec. 2A, Membership, 
paragraphs (b)(5) and (c) in the pension fund law book. 
(B) Disability and Retirement. A member must, at the time of disability, elect 
between retirement or disability benefits if eligible for both. When a member, 
while on disability, reaches the age of 55 the member may switch to retirement 
benefits if he/she so chooses. The member shall then be deemed permanently 
retired. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on August 20, 1998.
TRD-9813290
Morris E. Sandefer
Commissioner
Fire Fighters' Pension Commission
Proposed date of adoption: December 4, 1998
For further information, please call: (512) 936-3372

TITLE 37. PUBLIC SAFETY AND CORRECTIONS
PART I. Texas Department of Public Safety
CHAPTER 13.Controlled Substances and Precursor/Apparatus Rules and Regulations
SUBCHAPTER B.Registration
37 TAC sec.13.22
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Department 
of Public Safety or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The Texas Department of Public Safety proposes the repeal of sec.13.22, 
concerning Controlled Substances Registration. The section is proposed for 
repeal with simultaneous proposal of new sec.13.22 that will increase the 
application fee to $25. 
Tom Haas, Chief of Finance, has determined that for the first five years the 
repeal is in effect there will be no fiscal implications to local or state 
government. 
Mr. Haas also has determined that for each year of the first five years the 
repeal is in effect the public benefit anticipated will be to reduce the 
opportunity for abuse or illegal diversion of controlled substances. There is no 
anticipated cost to persons who are required to comply with the repeal as 
proposed. There are no anticipated economic costs to small or large businesses. 
Comments on the repeal may be submitted to Mary Ann Courter, Chief of Legal 
Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0140, 
(512) 424-2890. 
The repeal is proposed pursuant to the Health and Safety Code, Chapter 481, 
Texas Controlled Substances Act, sec.481.064(a) and sec.481.003, which provides 
the director may adopt rules to administer and enforce this chapter. 
Health and Safety Code, Chapter 481 is affected by this repeal. 
sec.13.22. Fee. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on August 17, 1998.
TRD-9813031
Dudley M. Thomas
Director
Texas Department of Public Safety
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 424-2890

The Texas Department of Public Safety proposes new sec.13.22, concerning 
Controlled Substances Registration Fee. The 75th Texas Legislature authorized an 
annual fee of not more than $25 to cover the cost of administering and enforcing 
the Texas Controlled Substances Act, Subchapter C. This subchapter regulates the 
manufacture, distribution, and dispensation of controlled substances, chemical 
precursors, and chemical laboratory apparatus. 
Tom Haas, Chief of Finance, has determined that for each year of the first five-
year period the rule is in effect there will be no fiscal implications for local 
government. Fiscal impact to state government will be an annual increase in 
general revenue funds of approximately $1,147,280. Fiscal impact to the 
Department of Public Safety will be administrative costs of less than $1,000 
expended for printing revised registration forms. 
Mr. Haas also has determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will be adequate funding of the department's efforts to administer and enforce 
its regulation of highly abusable substances, thereby reducing the opportunity 
for abuse or illegal diversion. The cost to persons who are required to comply 
with the section as proposed will be the $25 fee paid by medical practitioners, 
pharmacies, hospitals and other institutions, and individuals which register 
annually to manufacture, distribute, prescribe, possess, analyze, or dispense 
controlled substances. The cost for small or large businesses will be the same 
$25 registration fee. 
Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal 
Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0140, 
(512) 424-2890. 
The new section is proposed pursuant to the Health and Safety Code, Chapter 481, 
Texas Controlled Substances Act, sec.481.064(a) and sec.481.003, which provides 
the director may adopt rules to administer and enforce this chapter. 
Health and Safety Code, Chapter 481, is affected by this proposal.

sec.13.22. Fee. 
(a) For each original or renewal application for registration to manufacture, 
distribute, prescribe, possess, analyze, dispense, or conduct research with a 
controlled substance, the applicant shall pay a registration fee of $25. 
(b) Applicants shall submit the fee with their application for registration or 
reregistration directly to the Controlled Substances Registration Section, MSC 
0438, Texas Department of Public Safety, Box 15999, Austin, Texas 78761-5999. 
(c) Payment shall be made in the form of a personal, certified, or cashier's 
check or money order, payable to the "Texas Department of Public Safety." 
(d) The director will not accept a fee payment made in the form of stamps, 
foreign currency, or a third party endorsed check. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on August 17, 1998.
TRD-9813032
Dudley M. Thomas
Director
Texas Department of Public Safety
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 424-2890

PART XI. Texas Juvenile Probation Commission
CHAPTER 343. Standards for Pre-Adjudication Secure Detention Facilities
37 TAC sec.sec.343.1, 343.2, 343.4, 343.5, 343.9-343.11, 343.16, 343.17, 343.20
The Texas Juvenile Probation Commission proposes amendments to sec.sec.343.1, 
343.2, 343.4, 343.5, 343.9, 343.10, 343.11, 343.16, and 343.17 concerning pre-
adjudication secure detention facilities and new sec.343.20 concerning 
chronically overcrowded detention facilities. The amendments and new section are 
being proposed in an effort to clarify juvenile probation services and address 
the issue of chronic overcrowding in detention facilities.
Maribeth Powers, Director of Field Services, has determined that for the first 
five year period the amendments and new section are in effect, there will be no 
fiscal implications for state or local government as a result of enforcement. 
Ms. Powers has also determined that for each year of the first five years the 
amendments are in effect, the public benefit anticipated as a result of 
enforcing the amendments will be improved juvenile probation services. There 
will be no effect on small businesses. There are no anticipated economic costs 
to persons who are required to comply with the amendments as proposed. 
Comments on the proposed amendments may be submitted to Maribeth Powers at the 
Texas Juvenile Probation Commission, P. O. Box 13547, Austin, Texas 78711. 
The amendments are proposed under Texas Human Resource Code sec.141.042, which 
provides the Texas Juvenile Probation Commission with the authority to adopt 
reasonable rules that provide minimum standards for juvenile boards and that are 
necessary to provide adequate and effective probation services. 
No other code or article is affected by the amendment. 

sec.343.1. Definitions. 
The following words and terms, when used in this chapter, shall have the 
following meanings, unless the context clearly indicates otherwise. 
<nl>(1)<ol> Control Room--A secure area which contains the emergency, 
monitoring, and communications systems and is staffed 24 hours each day that 
juveniles are in the facility. 
<nl>(2)<ol> Detention--The temporary secure custody of a juvenile pending court 
disposition or transfer to another jurisdiction or agency. 
<nl>(3)<ol> Detention Facility Chronic Overcrowding--A detention facility shall 
be considered to be chronically overcrowded if, within a six month period, the 
daily population count taken between the hours of 6:00 am and 8:00 am exceeds 
the rated capacity of the facility by 20% or more on 90 or more days. 
<nl>(4)<ol> Detention Officer--A person whose primary responsibility is the 
direct and immediate supervision of the daily activities of detained juveniles. 
Administrative, food services, janitorial, and other auxiliary staff are not 
considered to be detention officers. 
<nl>(5)<ol> Hold Over Detention Facility--Any holdover facilities located in the 
same building or grounds with an adult correctional facility, including those 
authorized by Section 51.12(I), Texas Family Code, shall comply with criteria 
set forth in the federal Juvenile Justice and Delinquency Prevention Act (42 
U.S.C. 5601, et.seq.) and any subsequent amendments, rules and interpretive 
commentary passed or promulgated thereto after the effective date of this 
standard. 
<nl>(6)<ol> Rated Capacity--Maximum number of juveniles who may be housed within 
a facility in accordance with TJPC Standards. 
<nl>(7)<ol> Secure Detention Facility--Any public or private residential 
facility that includes construction and fixtures designed to physically restrict 
the movements and activities of juveniles or other individuals held in lawful 
custody in the facility and is used for the temporary placement of any juvenile 
or other individual who is accused of having committed an offense and is 
awaiting court action, an administrative hearing, or other transfer action. Such 
facilities shall be operated separately from any post-adjudication facility. 
Where such facilities are located in the same building or on the same grounds as 
a post-adjudicatory facility, written policies and procedures require contact 
between the two populations be kept to a minimum. 

sec.343.2. Administration, Organization, and Management.
(a) (No change.) 
(b) Written policy and procedure, and practice of the following standards shall 
apply to all detention facilities except for hold over detention facilities: 
(1) (No change.) 
(2) Duties of the Administrative Officer. The duties of the administrative 
officer shall include, but shall not be limited to the following: 
(A) (No change.) 
(B) reporting the death, <nl>attempted suicide, alleged<ol> abuse or neglect, 
<nl>and any serious injury that requires medical treatment by a physician or 
physician's assistant, of detained juvenile<ol> to TJPC <nl> and the Chief 
Juvenile Probation Officer of the placing county<ol> within 24 hours of 
discovery of the incident and in accordance with <nl>Chapter 261, Texas Family 
Code<ol> [Texas State Law]; 
(C)-(F) (No change.) 
(3)-(4) (No change.) 
<nl>(c)<ol> Investigations of allegations of child abuse or neglect. Each 
facility shall have written policy, procedure and practice to require an 
internal investigation of allegations of child abuse or neglect in the facility. 
The policy shall require all staff members to fully cooperate with any 
investigation of alleged child abuse or neglect in the facility. The policy 
shall require that any person alleged to be a perpetrator of child abuse or 
neglect be put on administrative leave or reassigned to a position having no 
contact with children in the facility until the conclusion of the investigation. 
The alleged perpetrator shall have no contact with the alleged victim(s) pending 
the conclusion of the internal investigation. At the conclusion of an 
investigation of child abuse or neglect each facility shall take appropriate 
measures to provide for the safety of children.

sec.343.4. Personnel. 
Written policy and procedure, and practice of the following standards shall 
apply to all detention facilities except for hold over detention facilities.
(1) Qualifications. Selection, retention, promotion, and demotion of facility 
staff shall be on the basis of knowledge, skills, performance, and abilities. No 
person shall be discriminated against on the basis of age, sex, race, religion, 
national origin, or disability. Corrections officers shall be of good moral 
character and emotionally suited for working with juveniles. A corrections 
officer shall be at least 21 years of age and have either a high school diploma 
or a general equivalency diploma. The age requirement may be waived by the TJPC 
when a written request is submitted by the chair of the juvenile board or the 
administrative officer of a private facility. <nl> A criminal history record 
check and a sex offender registration database check must be conducted on each 
prospective employee and a copy of the results of the checks shall be kept on 
file. A person may not serve as a detention officer if the person is currently 
on community supervision or parole or serving a sentence for a criminal 
offense.<ol> [Background investigations of prospective employees shall be 
conducted according to county policy.] Preference in employment should be given 
to those best qualified by education and training in juvenile corrections. 
Preference shall be given to those with bachelors' degrees conferred by colleges 
and universities accredited by an organization recognized by the Coordinating 
Board, Texas College and University System. The administration shall make a 
reasonable effort to insure that the ethnic makeup of the facility staff is 
generally reflective of the ethnic makeup of the residents of the facility, 
consistent with the requirements of state and federal law. 
(2)-(5) (No change.) 

sec.343.5. Training and Staff Development. 
Written policy and procedure, and practice of the following standards shall 
apply to all detention facilities except for hold over detention facilities.
(1) (No change.) 
(2) New employees. The administrative officer shall ensure that corrections 
officers receive: 
<nl>(A)<ol> orientation training within 30 days of employment; and 
<nl>(B)<ol> <nl>certification in cardiopulmonary resuscitation, first aid, and 
the use of a physical restraint technique approved by TJPC prior to sole 
supervision.<ol> [40 hours of orientation training before undertaking their 
assignments. The training shall be approved by the Texas Juvenile Probation 
Commission. Detention officers shall maintain current certification in 
cardiopulmonary resuscitation and in first aid.] 
(3)-(4) (No change.) 

sec.343.9. Security and Control. 
(a) Written policy and procedure, and practice of the following standards shall 
apply to all detention facilities. 
(1)-(6) (No change.) 
<nl>(7)<ol> Physical Restraint. Written policy, procedure, and practice shall 
require facilities to adopt a TJPC approved physical restraint technique. 
Restraint techniques shall be restricted to instances of justifiable self-
protection, protection of others, prevention of serious property damage, and 
prevention of escapes, and movement of juveniles from point to point, and then 
only as a last resort. In no event are restraint techniques justifiable as 
punishment, discipline, compliance and intimidation. The physical restraint 
shall be fully documented and reported. Restraint shall be terminated as soon as 
the youth's behavior indicates that threat of imminent self-injury or injury to 
others are absent. 
(b) (No change.) 

sec.343.10. Rules and Discipline. 
Written policy and procedure, and practice of the following standards shall 
apply to all detention facilities. 
(1)-(2) (No change.) 
(3) Enforcement. Written policy shall describe sanctions staff may impose in 
response to major rule violations. All such violations and corresponding staff 
actions shall be recorded in the juvenile's record.
(A) (No change.) 
(B) Separation from the group. Room restriction or confinement may be used only 
when a juvenile is out of control, repeatedly refuses to comply with rules, is a 
threat to himself or others, is threatened by the group, or at the direction of 
a medical professional as a health precaution.
(i)-(ii) (No change.) 
<nl>(iii)<ol> While in room confinement for suicidal behaviors, a detention 
officer shall personally observe, and document their observations of the 
juvenile at least every 5 minutes. 
(C) (No change.) 

sec.343.11. Food Service. 
Written policy and procedure, and practice of the following standards shall 
apply to all detention facilities except for hold over detention facilities.
(1)-(5) (No change.) 
<nl>(6)<ol> Juveniles must be allowed adequate time to eat meals and in no case 
less than 10 minutes. 

sec.343.16. Juveniles' Rights. 
Written policy and procedure, and practice of the following standards shall 
apply to all detention facilities. 
(1)-(10) (No change.) 
<nl>(11)<ol> Treatment and Safety. Resident juveniles shall not be subjected to 
abuse or neglect as defined in Chapter 261, Texas Family Code. The following is 
a list of prohibited conduct:
<nl>(A)<ol> any act or failure to act performed knowingly, recklessly, or 
intentionally, including incitement to act, which may have caused physical 
injury or death to a juvenile resident; 
<nl>(B)<ol> any act of inappropriate or excessive force or corporal punishment, 
regardless of whether the act results in an injury to a person served; 
<nl>(C)<ol> any use of chemical or bodily restraints not in compliance with 
federal and state laws and TJPC standards; 
<nl>(D)<ol> sexual activity; 
<nl>(E)<ol> any act or use of verbal or other communication including gestures 
to curse, vilify, or degrade a person served or threaten a juvenile resident 
with physical or emotional harm; 
<nl>(F)<ol> a negligent act or omission by any individual responsible for 
providing services in a facility rendering care or treatment which caused 
physical or emotional injury or death to a juvenile and includes an act or 
omission such as the failure to establish or carry out an appropriate services 
based upon the needs of the child, the failure to provide adequate nutrition, 
clothing or health care and the failure to provide a safe environment for a 
juvenile served, including the failure to maintain adequate numbers of 
appropriately trained staff; 
<nl>(G)<ol> sexual activity, including sexual exploitation as defined in 
sec.161.131 of the Texas Health and Safety Code and sexual assault as defined in 
sec.22.011 of the Texas Penal Code, involving an employee, agent or contractor 
and a person served. Sexual activity includes but is not limited to 
inappropriate sexual contact including kissing, hugging, stroking, or fondling 
with sexual intent; oral sex or sexual intercourse; request or suggestion or 
encouragement by staff for performance of sex with the employee him/herself or 
with another person served; 
<nl>(H)<ol> coercive, manipulative, or otherwise exploitative pattern, practice, 
or scheme of conduct, which may include sexual contact, that can be reasonably 
construed as being for the purposes of sexual arousal or gratification or sexual 
abuse of any person. The term does not include obtaining information about a 
juvenile's sexual history within standard accepted practice. 

sec.343.17. Programs. 
Written policy and procedure, and practice of the following standards shall 
apply to all detention facilities except for hold over detention facilities.
(1)-(2) (No change.) 
(3) Recreation. Indoor and outdoor recreational equipment and supplies shall be 
provided. The recreational schedule standards shall include: 
(A)-(B) (No change.) 
<nl>(C)<ol> Physical Exercise Program. Physical exercises shall not be used for 
punishment, compliance, or intimidation. Physical exercises should help increase 
stamina, well being, self-esteem, and healthy behaviors. 
(4)-(5) (No change.) 

sec.343.20. Chronically Overcrowded Detention Centers. 
(a) A chronically overcrowded detention center shall provide TJPC with a plan to 
remedy the overcrowded conditions within the facility. If the plan includes 
construction of new beds, there must be provisions to alleviate or manage 
overcrowded conditions and balance the health and safety of residents and 
facility staff with protection of the public. 
(b) In examining the respective risks to facility occupants and the public, the 
population of the facility shall be reviewed to insure that: 
(1) Only juveniles who meet criteria for detention under 53.02(b) of the Texas 
Juvenile Justice Code are detained in the facility; 
(2) Priorities are established regarding the use of detention space. Such 
priorities should restrict the use of detention for juveniles who do not present 
a danger to the public, conserving bed space in the facility for those juveniles 
who pose increased risks for the public; and 
(3) Juveniles awaiting court appearances and transfers are processed through the 
system as expeditiously as possible. 
(c) Facilities identified as chronically overcrowded shall provide TJPC with a 
monthly report that documents adherence to numbers one and two above, and that 
describes progress achieved on their plan to reduce overcrowding and a 
description of the facility population for the preceding month by offense and 
length of stay. 
(d) Recommended Detention Criteria by Offense Severity: 
(1) Detention Priority 1-Capital Felony 
(2) Detention Priority 2-First Degree Felony 
(3) Detention Priority 3-Second Degree Felony 
(4) Detention Priority 4-Class A Misdemeanors through Third Degree Felonies 
involving a weapon, violence toward a person or persons, or where the child 
presents an imminent threat to public safety 
(5) Detention Priority 5-Misdemeanor offenses involving an assault or violence 
toward a person or persons, or where the child presents an imminent threat to 
public safety 
(6) Detention Priority 6-All other misdemeanor offenses and technical violations 
where public safety is not an issue should be restricted or other means of 
surveillance and control employed if such detention would cause a condition of 
overcrowding to occur in the facility. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 21, 1998.
TRD-9813353
Steve Bonnell
Deputy Executive Director
Texas Juvenile Probation Commission
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 424-6681

CHAPTER 344. Standards for Juvenile Post-Adjudication Secure Correctional 
Facilities
37 TAC sec.sec.344.2, 344.3, 344.4, 344.8-344.10, 344.15, 344.16
The Texas Juvenile Probation Commission proposes amendments to sec.sec.344.2, 
344.3, 344.4, 344.8, 344.9, 344.10, 344.15, and 344.16 concerning post-
adjudication secure correctional facilities. The amendments and new section are 
being proposed in an effort to clarify juvenile probation services and address a 
wide range of issues, including investigations of child abuse, criminal 
background checks, physical restraint, and treatment and safety.
Maribeth Powers, Director of Field Services, has determined that for the first 
five year period the amendments are in effect, there will be no fiscal 
implications for state or local government as a result of enforcement. 
Ms. Powers has also determined that for each year of the first five years the 
amendments are in effect, the public benefit anticipated as a result of 
enforcing the amendments will be improved juvenile probation services. There 
will be no effect on small businesses. There are no anticipated economic costs 
to persons who are required to comply with the amendments as proposed. 
Comments on the proposed amendments may be submitted to Maribeth Powers at the 
Texas Juvenile Probation Commission, P. O. Box 13547, Austin, Texas 78711. 
The amendments are proposed under Texas Human Resource Code sec.141.042, which 
provides the Texas Juvenile Probation Commission with the authority to adopt 
reasonable rules that provide minimum standards for juvenile boards and that are 
necessary to provide adequate and effective probation services. 
No other code or article is affected by the amendment. 

sec.344.2. Administration, Organization, and Management. 
(a)-(d) (No change.) 
(e) Duties of the administrative officer. Written policy and procedure, and 
practice shall ensure that the duties of the administrative officer include, but 
shall not be limited to the following: 
(1) (No change.) 
(2) reporting the death, <nl>attempted suicide, alleged <ol> abuse or neglect, 
<nl>and any serious injury that requires medical treatment by a physician or 
physicians assistant, of detained juvenile<ol> to TJPC <nl>and the Chief 
Juvenile Probation Officer of the placing county <ol> within 24 hours of 
discovery of the incident and in accordance with <nl> Chapter 261, Texas Family 
Code<ol> [Texas State Law]; 
(3)-(5) (No change.) 
(f) (No change.) 
<nl>(g)<ol> Investigations of allegations of child abuse or neglect. Each 
facility shall have written policy, procedure and practice to require an 
internal investigation of allegations of child abuse or neglect in the facility. 
The policy shall require all staff members to fully cooperate with any 
investigation of alleged child abuse or neglect in the facility. The policy 
shall require that any person alleged to be a perpetrator of child abuse or 
neglect be put on administrative leave or reassigned to a position having no 
contact with children in the facility until the conclusion of the investigation. 
The alleged perpetrator shall have no contact with the alleged victim(s) pending 
the conclusion of the internal investigation. At the conclusion of an 
investigation of child abuse or neglect each facility shall take appropriate 
measures to provide for the safety of children.

sec.344.3. Personnel.
(a) Qualifications. Selection, retention, promotion, and demotion of facility 
staff shall be on the basis of knowledge, skills, performance, and abilities. No 
person shall be discriminated against on the basis of age, sex, race, religion, 
national origin, or disability. Corrections officers shall be of good moral 
character and emotionally suited for working with juveniles. A corrections 
officer shall be at least 21 years of age and have either a high school diploma 
or a general equivalency diploma. The age requirement may be waived by the TJPC 
when a written request is submitted by the chair of the juvenile board or the 
administrative officer of a private facility. <nl> A criminal history record 
check and a sex offender registration database check must be conducted on each 
prospective employee and a copy of the results of the checks shall be kept on 
file. A person may not serve as a detention officer if the person is currently 
on community supervision or parole or serving a sentence for a criminal 
offense.<ol> [Background investigations of prospective employees shall be 
conducted.] Preference in employment should be given to those best qualified by 
education and training in juvenile corrections. Preference shall be given to 
those with bachelors' degrees conferred by colleges and universities accredited 
by an organization recognized by the Coordinating Board, Texas College and 
University System. The administration shall make a reasonable effort to insure 
that the ethnic makeup of the facility staff is generally reflective of the 
ethnic makeup of the residents of the facility, consistent with the requirements 
of state and federal law. 
(b)-(e) (No change.) 

sec.344.4. Training and Staff Development.
(a) (No change.) 
(b) New employees. Written policy, procedure and practice of the administrative 
officer shall ensure that corrections officers receive:
<nl>(1)<ol> orientation training within 30 days of employment; and 
<nl>(2)<ol> <nl>certification in cardiopulmonary resuscitation, first aid, and 
the use of a physical restraint technique approved by TJPC prior to sole 
supervision.<ol> [40 hours of Texas Juvenile Probation Commission approved 
orientation training prior to undertaking their job assignments. All juvenile 
corrections officers shall maintain current certification in cardiopulmonary 
resuscitation (CPR) and first aid.]
(c)-(d) (No change.) 

sec.344.8. Security and Control.
(a)-(d) (No change.) 
(e) Classification Plan. The security of the facility shall be designed and 
constructed so that residents can be grouped in accordance with a classification 
plan. <nl>Classification plans shall require that juvenile inmate populations of 
progressive sanctions level 5 and below be physically segregated from committed 
(level 6 and 7) juvenile inmates.<ol> 
(f)-(j) (No change.) 
<nl>(k)<ol> Physical Restraint. Written policy, procedure, and practice shall 
require facilities to adopt a TJPC approved physical restraint technique. 
Restraint techniques shall be restricted to instances of justifiable self-
protection, protection of others, prevention of serious property damage, and 
prevention of escapes, and movement of juveniles from point to point, and then 
only as a last resort. In no event are restraint techniques justifiable as 
punishment, discipline, compliance and intimidation. The use of force shall be 
fully documented and reported. Restraint shall be terminated as soon as the 
youth's behavior indicates that threat of imminent self-injury or injury to 
others are absent. 

sec.344.9. Rules and Discipline. 
(a)-(b) (No change.) 
(c) Enforcement. 
(1)-(2) (No change.) 
(3) Confinement. Written policy, procedure, and practice shall ensure that when 
a juvenile has been charged with a minor rules violation requiring confinement 
for the safety of the juvenile, other juveniles, or to ensure the security of 
the facility, the juvenile may be confined for a period of up to 24 hours. 
Confinement for periods of more than 24 hours shall be reviewed every 24 hours 
by an administrator or designee who was not involved in the incident. Confined 
juveniles shall not be restrained by mechanical devices unless their behavior 
indicates that there is a danger that they might harm themselves or others, 
damage property, or attempt to escape. While in room confinement, a corrections 
officer shall personally observe, and document their observations, the juvenile 
at least every 15 minutes. <nl>While in room confinement for suicidal threats, a 
corrections officer shall personally observe, and document their observations of 
the juvenile at least every 5 minutes.<ol> 
(4)-(5) (No change.) 

sec.344.10. Food Services.
(a)-(f) (No change.) 
<nl>(g)<ol> Juveniles must be allowed adequate time to eat meals and in no case 
less than 10 minutes. 

sec.344.15. Juvenile Rights.
(a)-(g) (No change.) 
<nl>(h)<ol> Treatment and Safety. Resident juveniles shall not be subjected to 
abuse or neglect as defined in Chapter 261, Texas Family Code. The following is 
a list of prohibited conduct: 
<nl>(1)<ol> any act or failure to act performed knowingly, recklessly, or 
intentionally, including incitement to act, which may have caused physical 
injury or death to a juvenile resident; 
<nl>(2)<ol> any act of inappropriate or excessive force or corporal punishment, 
regardless of whether the act results in an injury to a person served; 
<nl>(3)<ol> any use of chemical or bodily restraints not in compliance with 
federal and state laws and TJPC standards; 
<nl>(4)<ol> sexual activity; 
<nl>(5)<ol> any act or use of verbal or other communication including gestures 
to curse, vilify, or degrade a person served or threaten a juvenile resident 
with physical or emotional harm; 
<nl>(6)<ol> a negligent act or omission by any individual responsible for 
providing services in a facility rendering care or treatment which caused 
physical or emotional injury or death to a juvenile and includes an act or 
omission such as the failure to establish or carry out an appropriate services 
based upon the needs of the child, the failure to provide adequate nutrition, 
clothing or health care and the failure to provide a safe environment for a 
juvenile served, including the failure to maintain adequate numbers of 
appropriately trained staff; 
<nl>(7)<ol> sexual activity, including sexual exploitation as defined in 
sec.161.131 of the Texas Health and Safety Code and sexual assault as defined in 
sec.22.011 of the Texas Penal Code, involving an employee, agent or contractor 
and a person served. Sexual activity includes but is not limited to 
inappropriate sexual contact including kissing, hugging, stroking, or fondling 
with sexual intent; oral sex or sexual intercourse; request or suggestion or 
encouragement by staff for performance of sex with the employee him/herself or 
with another person served; 
<nl>(8)<ol> coercive, manipulative, or otherwise exploitative pattern, practice, 
or scheme of conduct, which may include sexual contact, that can be reasonably 
construed as being for the purposes of sexual arousal or gratification or sexual 
abuse of any person. The term does not include obtaining information about a 
juvenile's sexual history within standard accepted practice. 

sec.344.16. Programs. 
(a)-(g) (No change.) 
<nl>(h)<ol> Physical Training Program. Written policy, procedure, and practice 
shall include a written physical training program plan. The program plan shall 
include time limits, type of exercises, and an initial screening to determine a 
juveniles physical functioning level. Physical exercises shall not be used for 
punishment, compliance, or intimidation. Physical exercises should help increase 
stamina, well being, self-esteem, and healthy behaviors.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 21, 1998.
TRD-9813354
Steve Bonnell
Deputy Executive Director
Texas Juvenile Probation Commission
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 424-6681

TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART I. Texas Department of Human Services
CHAPTER 69.Contracted Services
SUBCHAPTER L.Contract Administration
40 TAC sec.69.212
The Texas Department of Human Services (DHS) proposes new sec.69.212, concerning 
year 2000 responsibilities, in its Chapter 69, Contracted Services. The purpose 
of the new section is to require DHS contractors to make reasonable efforts to 
ensure against any problems that may result from Year 2000 computer problems. 
Eric M. Bost, commissioner, has determined that for the first five-year period 
the section is in effect there will be no fiscal implications for state or local 
govern- ment as a result of enforcing or administering the section. 
Mr. Bost also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to protect the public by requiring DHS contractors to prepare 
for Year 2000 eventualities. The new section will not generate any additional 
costs for businesses, large or small, because preparing for Year 2000 changes is 
part of the normal cost of doing business. There is no anticipated economic cost 
to persons who are required to comply with the proposed section.
Questions about the content of this proposal may be directed to Susan Syler at 
(512) 438-3111 in DHS's Long Term Care Policy Section. Written comments on the 
proposal may be submitted to Supervisor, Rules and Handbooks Unit-320, Texas 
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, 
within 30 days of publication in the Texas Register. 
The new section is proposed under the Human Resources Code, Title 2, Chapter 22, 
which authorizes the department to administer public assistance programs. 
The new section implement the Human Resources Code, sec.sec.22.001-22.033.

sec.69.212. Year 2000 Responsibilities. 
In respect to all contracts in effect after December 31, 1999: All services 
provided under contract with the Texas Department of Human Services (DHS) are 
required, as a condition of the contract, not to constitute a threat to the 
health and safety of DHS clients as a result of computer software, firmware, or 
imbedded logic unable to recognize different centuries or more than one century 
on or after January 1, 2000. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on August 21, 1998.
TRD-9813365
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: November 1, 1998
For further information, please call: (512) 438-3765

TITLE 43. TRANSPORTATION
PART III. Automobile Theft Prevention Authority
CHAPTER 57.Automobile Theft Prevention Authority
43 TAC sec.57.36
The Automobile Theft Prevention Authority (ATPA) proposes amendments to 
sec.57.36, concerning the level of funding for projects receiving ATPA grant 
funds. ATPA has statutory authority to determine funding levels. ATPA previously 
published a proposed amendment to this section which removed the required 
grantee match contribution March 18, 1997, (22 TexReg 2839). That proposed 
amendment was adopted, on April 17, 1997, but the Texas Register never published 
it, due to the transition of transferring ATPA rules from Title 1 to Title 43 of 
the Texas Administrative Code. As a result, the rule, as amended, was 
automatically withdrawn on October 10, 1997, (22 TexReg 10127). Proposed changes 
to subsections (a) and (d), again, delete the requirement for a cash or in-kind 
match by a grantee in order to receive ATPA funds after the second year of 
funding. The current maximum levels of funding as provided in subsection (a) are 
not changed. However, in subsection (d) and new subsection (e), the board 
proposes to allow a grantee to request ATPA funds above their 80% maximum of 
their second year award in a project's third grant year and thereafter, provided 
the grantee contributes a cash match of 20% of the total ATPA funds awarded. 
Currently, a grantee, beginning in the third year of a project, is restricted to 
a maximum funding level of 80% of the second year award. The original intent of 
this restriction was to encourage projects to become, in part, self-funded. 
Inadvertently, this restriction has prevented ATPA from awarding sufficient 
funding to successful projects after the second year. Under the proposed option, 
ATPA will consider increased funding above the 80% restriction for qualified 
projects to assist in covering annual cost increases and to support continued 
growth. However, in order to receive this additional funding a grantee must 
contribute a 20% cash match, which must be expended prior to the expenditure of 
any ATPA funds. In this manner, ATPA hopes to encourage self-funding and at the 
same time provide sufficient ATPA funding for successful projects that should be 
continued at current activity levels or expanded. Other changes in text are 
proposed for grammar, consistency, and format. 
Agustin De La Rosa, Director of the ATPA, has determined that for each year of 
the first five years that the rules, as amended, will be in effect, there may be 
some fiscal implications to state and local governments who are ATPA grantees, 
as a result of enforcing or administering the rule as proposed for amendment. An 
actual dollar amount cannot be determined. The fiscal implications for a 
particular governmental body will be determined by the amount of funds requested 
by the respective governmental body above the 80% funding level of the grantee's 
second year award and the requirement that the cash match contributions be 
expended prior to the ATPA funds awarded. If a governmental body chooses to 
apply for additional funding, then matching funding will be required, which 
means an increase in agency expenses. At the same time, however, the 
governmental body will receive additional ATPA funds which will be used, in 
addition to agency funding, to offset increased costs of an on-going project. It 
is not anticipated that any mandatory increase or decrease in expenses as result 
of these proposed amendments will occur, since participation by local 
governments is permissive. Also, the 80% funding level beginning in the third 
year is a current restriction. There will be no other fiscal implications to 
state government as a result of enforcing or administering the rule, as proposed 
for amendment. 
Mr. De La Rosa also has determined that for each year of the first five years 
the rule as amended will be in effect, the public will benefit by the continued 
ATPA funding for successful ATPA projects without requiring a cash match and by 
the availability of additional ATPA funding, for the growth of successful 
projects, beyond their second year. Additionally, for the same period of time, 
Mr. De La Rosa has determined that there is no anticipated economic costs to 
persons required to comply with the rule as proposed for amendment, except as 
already explained above in the fiscal implications for governmental bodies who 
are ATPA grantees. There is no anticipated effect on small businesses. 
Comments on the proposal may be submitted to Agustin De La Rosa, Director, 
Automobile Theft Prevention Authority, 200 East Riverside Drive, Austin, Texas 
78704, for a period of 30 days following publication in this issue of the Texas 
Register.
This amendment is proposed under Texas Civil Statutes, Article 4413(37), 
sec.6(a). The ATPA interprets sec.6(a) as authorizing it to adopt rules 
implementing its statutory powers and duties, which includes determining levels 
of funding for the ATPA grant projects as part of its plan for providing 
financial support to combat automobile theft and economic automobile theft as 
required by sec.7 and sec.8 of Article 4413(37). 

sec.57.36. Level of Funding for Grant Projects.
(a) <nl>The level of ATPA funding for a project will not exceed the following 
annual rates: <ol>
<nl>(1)<ol> <nl> Years 1 and 2 -- 100% of the grant request for each year. <ol>
<nl>(2)<ol> <nl> Year 3 and thereafter -- 80% of the second year award 
thereafter.<ol> [The formal definition of match is any article, service, 
facility or personnel expenses provided for use by the grant recipient, not to 
exceed 20% of the grantee's second year award OR the 1994 award as a benchmark, 
subject to review by the Executive Director and ATPA Board, and to availability 
of funds. The level of funding for projects receiving ATPA funding will be at 
the following ratios of maximum ATPA funds and minimum local cash and/or in-kind 
match contributions (ATPA - funded indirect costs excluded):] 
[Figure 1: 43 TAC sec.57.36(a)] 
(b)-(c) (No change.) 
<nl>(d)<ol> <nl> A grantee, in an 80% ATPA funding year, may apply for:<ol> 
<nl>(1)<ol> <nl> ATPA funding in an amount not to exceed 80% of the second year 
award without a cash match; or <ol>
<nl>(2)<ol> <nl> additional ATPA funding above 80% of the second year award, if 
the grantee contributes a cash match of 20% of the total ATPA award.<ol> 
[Grantees who are in their 80% ATPA funding year may either apply for 80% of the 
second Fiscal Year grant funds without match or provide documentation for 20% of 
cash and/or in-kind contribution match, if the grantee chooses to show its local 
contribution to the grant program.] 
<nl>(e)<ol> <nl> A grantee awarded additional ATPA funds as provided in 
subsection (d) of this section must expend its 20% cash contribution prior to 
the expenditure of any ATPA funds.<ol> 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on August 18, 1998.
TRD-9813115
Agustin De La Rosa
Director
Automobile Theft Prevention Authority
Earliest possible date of adoption: October 4, 1998
For further information, please call: (512) 416-4606