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 use of bold text. [Brackets] indicate deletion of existing
material within a section.
TITLE 22. EXAMINING BOARDS
Part XI. Board of Nurse Examiners
Chapter 223. Fees
22 TAC sec.223.2
The Board of Nurse Examiners proposes new sec.223.2, concerning Charges for
Public Records. House Bill 1009, 73rd Legislative Session, amended the Texas
Open Records Act to require each state agency to specify, by rule, the charges
the agency will make for copies of public records. The bill calls for a state
agency to establish a charge for a copy of a public record that is equal to the
full cost to the agency in providing the copy. This bill also requires the
General Services Commission to specify by rule the methods and procedures that a
state agency may use in determining the amounts that the agency should charge to
recover the full cost to the agency in providing copies of public records.
Louise Waddill, PhD, RN, executive director, has determined that there will be
minimal fiscal implications as a result of enforcing or administering the rule;
however, we are unable to determine at this time the amount, due in part, to the
number of open records requests that are processed by the agency.
There will be no effect on local government nor businesses to comply with the
rule.
Ms. Waddill also has determined that for each year of the first five years the
rule as proposed will be in effect the public benefit will be clarification of
access to and copies of public records with consistent and reasonable charges.
Comments on the proposed new section may be submitted to Louise Waddill,
Executive Director, Board of Nurse Examiners, Box 140466; Austin, Texas 78714.
The new section is proposed under the Nursing Practice Act (Texas Civil
Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with
the authority and power to make and enforce all rules and regulations necessary
for the performance of its duties and conducting of proceedings before it and
House Bill 1009-Chapter 428, Acts, 73rd Legislature, Regular Session (1993).
Article 4527 of the Nursing Practice Act is affected by this proposed new
section.
sec.223.2. Charges for Public Records. In accordance with the Act, 73rd
Legislature, Regular Session (1993), Chapter 428, sec.5, the following specifies
the charges the Board of Nurse Examiners will make for copies of public records.
These charges are based on the full cost to the agency for providing the copies.
(1) Definitions. The following words and terms, when used in this section,
shall have the following meaning, unless the context clearly indicates
otherwise.
(A) Standard-size copy-A printed impression on one side of a piece of paper
that measures up to 8-1/2 by 14 inches. Each side of the paper on which an
impression is made is counted as a single copy. A piece of paper printed on both
sides is counted as two copies.
(B) Copy charge-A charge for costs incurred in copying standard-size paper
copies reproduced by an office machine copier or a computer printer.
(C) Postage and shipping charge-A charge for costs incurred in sending
information to a requester, such as cost of postage, envelope, or long-distance
phone call for facsimile transmission.
(D) Personnel charge-A charge imposed for costs incurred for personnel time
expended in processing a request for public information. This charge may include
the time any employee spends reading/reviewing the initial request for records,
making copies of records, conducting a file search, conducting a computer
search, preparing and reviewing the response to the records request
(administrative oversight/review), and any other type of personnel time
necessary to respond to the request.
(E) Overhead charge-A charge for direct and indirect costs incurred in
addition to the personnel charge. This charge covers such costs as depreciation
of capital assets, rent, maintenance and repair, and utilities.
(F) Microfiche and microfilm charge-A charge for costs incurred for making a
copy of microfiche or microfilm.
(G) Remote document retrieval charge-A charge for costs incurred in obtaining
information not in current use in remote storage locations.
(H) Computer resource charge-A charge for costs incurred in obtaining
information on computers based on the amortized cost of acquisition, lease,
operation, and maintenance of computer resources. This charge may also include
programming time if a request requires a programmer to enter data in order to
execute an existing program or create a new program so that requested
information may be accessed.
(I) Readily available information-Information that is readily available may
include any information that does not fall under the "Not readily available
information" defined as follows.
(J) Not readily available information-Information that is not readily
available includes information that requires personnel to locate and retrieve a
specific file, review the file to locate the record, and replace the file after
the record has been located. Information that is not readily available also
includes information that requires personnel review to determine if the
information is what the requestor has asked for, or a review to determine if the
records contain information confidential under the Nursing Practice Act or other
law.
(2) Charges.
(A) For one to 50 standard-size copies of readily available information the
charge shall be $0.10 per page.
(B) For 51 pages or more of readily available information, or any quantity of
not readily available information, the charge shall be the sum of the following:
(i) $0.10 per page;
(ii) personnel charge in an amount reflecting the average hourly cost for
classified state employees as determined from time to time by the General
Services Commission;
(iii) overhead charge in an amount to be determined in accordance with the
guidelines of the General Services Commission;
(iv) microfiche and microfilm charge (if applicable) in an amount equal to the
actual cost to the agency of the reproduction, or in accordance with General
Services Commission guidelines;
(v) remote document retrieval charge (if applicable) in an amount equal to the
actual cost to the agency of the retrieval or in accordance with General
Services Commission guidelines;
(vi) computer resource charge (if applicable), including any programming time,
in an amount equal to the cost to the agency, or in accordance with General
Services Commission guidelines; and
(vii) actual cost of miscellaneous supplies (if applicable) in an amount
equal to the actual cost to the agency.
(C) If a particular request may involve considerable time and resources to
process, the agency may advise the requesting party of what may be involved and
provide an estimate of date of completion and the charges that may result.
(D) Payment for charges must be received by the Board of Nurse Examiners from
requestor before copies will be released.
This agency hereby certifies that the proposal has been reviewed by legal
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 3, 1994.
TRD-9448999
Louise Waddill, Ph.D., R.N.
Executive Director
Board of Nurse Examiners
Proposed date of adoption: November 14, 1994
For further information, please call: (512) 835-8675
Part XXI. Texas State Board of Examiners of Psychologists
Chapter 473. Fees
22 TAC sec.473.7
TDMHMR
[TXMHMR] staff or TDMHMR's
[TXMHMR's] authorized agent. To develop a separate set of reimbursement rate
recommendations for each class of service within each provider class,
TDMHMR [TXMHMR] or its authorized agent applies the following
procedures.
(1)-(2) (No change.)
(3) Alternative [Alternate] children's facility reimbursement rates
for selected children's facilities are determined as follows, effective January
1, 1992.
(A)-(D) (No change.)
(E) Temporary method for determination of ICF/MR Level V alternative
children's facility rates for the period beginning October 1, 1994,
[September 1, 1994]. An eligible children's facility is reimbursed in the
following manner:
(i) Rates are based on projected per diem costs, not to exceed the ICF/MR
level V alternative children's facility rate as of September 30, 1994
[current ICF/MR/RC-VIII base rate, including the estimated per diem coast of
augmentative communication devices, plus the single highest supplemental rate
amount, as specified under sec.406.159(c) of this title (relating to ICF/MR/RC
VIII Experimental Class)]. The cost-based rates will not include a mark-up or
incentive factor.
(ii) Reimbursement for fixed capital assets is in the form of a use fee. The
use fee will be paid in lieu of building and building equipment depreciation,
land and leasehold amortization, mortgage interest, and/or building and building
equipment lease expense calculated as 14% of the appraised value of
buildings, improvements, and land, as determined by local taxing
authorities. If such an appraisal is unavailable, [The annual use
fee is calculated as 14% of] the appraised value of the property is determined
as the square footage of the facility devoted to the ICF/MR services multiplied
by the statewide median value per square foot of facilities in the large
facility Level V class of service. The per diem use fee is calculated by
dividing the annual use fee by anticipated facility days of service.
(iii) In calculating the projected costs, [Projected costs may be
calculated by using pro forma estimates based on] historical costs are
adjusted to reflect anticipated expenses related to resident care, active
treatment, health and safety, or other areas deemed necessary by TDMHMR to
deliver quality services [TDHS for the particular children's population
served].
(iv) -(v) (No change.)
(vi) This temporary method remains in effect until December 1, 1994
[September 30, 1994, or until formally replaced or modified through a State Plan
amendment, whichever comes first].
(F) Method for determination of ICF/MR Level V alternative children's
facility rates for the period beginning December 1, 1994. A facility must have
an acceptable facility capacity reduction plan approved by TDMHMR to remain
eligible for payment at the ICF/MR Level V alternative children's facility rates
after December 1, 1994. Any extensions or modifications to this plan must be
approved by TDMHMR. An eligible children's facility is reimbursed in the
following manner.
(i) Rates are based on projected allowable cost-based expenses not to
exceed the aggregate cost for services the facility provides as of September 30,
1994. Projected costs will be calculated by using pro forma estimates based on
historical costs adjusted to reflect the anticipated expenses related to
resident care, active treatment, health and safety, or other areas deemed
necessary by TDMHMR for the particular children's population served. The cost-
based rates will not include a mark-up or incentive factor.
(ii) Fixed capital assets are reimbursed in the form of a use fee. The
use fee will be paid in lieu of building and building equipment depreciation,
land and leasehold amortization, mortgage interest, and/or building and
equipment lease expense. The annual use fee is calculated as 14% of the
appraised value of buildings, improvements, and land, as determined by local
taxing authorities. If such an appraisal is unavailable, the appraised value of
the property is determined as the square footage of the facility devoted to
ICF/MR services multiplied by the statewide median value per square foot of
facilities in the large facility Level V class of service. The use fee will
include only that part of the building square footage that is used in the
provision of ICF/MR residential services. The per diem use fee is calculated by
dividing 25% of the annual use fee by anticipated facility days of service
during a fiscal quarter.
(iii) Any Medicaid payments not expended on Medicaid allowable costs
will be recouped by the state.
(iv) This temporary method remains in effect only as long as the
facility continues to reduce the certified capacity within the negotiated
timeframe approved by TDMHMR.
(d)-(e) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 5, 1994.
TRD-9449083
Ann K. Utley
Chairman
Texas Mental Health and Mental Retardation Board
Earliest possible date of adoption: November 14, 1994
For further information, please call: (512) 206-4516
TITLE 30. ENVIRONMENTAL QUALITY
Part I. Texas Natural Resource Conservation Commission
Chapter 330. Municipal Solid Waste
The Texas Natural Resource Conservation Commission (TNRCC) proposes amendments
to sec.330.4 and sec.330.65, concerning municipal solid waste management and
design requirements for Type V facilities that are exempt from permit or
registration requirements.
The proposed amendments are intended to clarify the existing policy that drying
grit-trap waste at a carwash does not require a permit or registration, and to
encourage the development of certain transfer stations and the recovery of
reusable material from solid waste received at those transfer stations, thereby
reducing transportation costs and the amounts of waste being landfilled. Due to
federal requirements of Subtitle D of the Resource Conservation and Recovery
Act, many small landfills in Texas have closed.
An amendment to sec.330.4, which added a new subsection (p) concerning waste
management and design requirements, was proposed for public comment in the May
10, 1994, issue of the Texas Register (19 TexReg 3561). A subsequent amendment
to sec.330.4, concerning the clarification of the grit trap policy, proposed for
public comment in the September 6, 1994, issue of the Texas Register (19 TexReg
6987), also proposed a new subsection (p), which creates a conflict and the
possibility of unintended confusion. To avoid any misunderstandings, the Texas
Natural Resource Conservation Commission is withdrawing the two earlier
proposals and is here replacing them with a single proposal that incorporates
all of the proposed changes to sec.330.4. Based on public comments received
following the publication of the proposal published in May 10, 1994, issue of
the Texas Register (19 TexReg 3561), the TNRCC has decided to make significant
changes to the original proposal.
The proposed changes are consistent with Senate Bill 963, 73rd Legislature
(1993), which amended the Texas Solid Waste Disposal Act, sec.361.111, Texas
Health and Safety Code. The bill exempts certain municipal solid waste
management facilities involved in the transfer of municipal solid waste from
TNRCC municipal solid waste permit requirements. In order to qualify for permit
exemption, the facility must comply with certain design and operational
requirements, and must recover some materials from the incoming nonsegregated
waste.
The amendment to sec.330.4(f) adds new language that clarifies which material
recovery facilities must apply for a permit or registration.
Proposed new sec.330.4(p) clarifies that drying grit trap waste at a carwash
does not require a permit or registration.
Proposed new sec.330.4(q) provides that a permit is not required for a
municipal solid waste management facility that is used in the transfer of
municipal solid waste and recovers recyclable materials, if certain criteria are
met. In lieu of permitting, these facilities must be registered pursuant to
requirements of sec.330.65, concerning Registration for Solid Waste Management
Facilities.
The amendment to sec.330.65(f), concerning Additional Design Criteria,
delineates additional design standards for transfer stations that recover some
material from incoming nonsegregated waste.
Stephen Minick, Division of Budget and Planning, has determined that for the
first five years the sections are in effect there will be fiscal implications as
a result of administration and enforcement of the sections. The costs to state
and local governments and permit applicants for processing municipal solid waste
permits will be substantially reduced. The actual savings are prospective and
cannot be determined at this time but will be reflected by the number of
registrations sought.
Mr. Minick also has determined that for the first five years the sections as
proposed are in effect, the public benefit anticipated as a result of
enforcement of and compliance with the sections will be improvements in the
management and control of solid waste. There will be no effect on small
businesses. There are no known costs to persons required to comply with the
sections as proposed.
Comments on the proposal may be submitted to C. Wayne Lee, P.E., Waste Policy
Division, Texas Natural Resource Conservation Commission, P.O. Box 13087,
Austin, Texas 78711-3087. Comments will be accepted for a period of 30 days
following the date of this publication.
A public hearing for comments has also been scheduled for November 4, 1994, at
9:30 a.m. in Room 564, Building F, Park 35 Circle, Austin, Texas.
Subchapter A. General Information
30 TAC sec.330.4
The amendment is proposed under the authority of the Texas Water Code,
sec.5.103, which provides the Texas Natural Resource Conservation Commission
with the authority to adopt any rules necessary to carry out the powers and
duties under the provisions of the Texas Water Code. Additionally, it is
promulgated pursuant to the Texas Solid Waste Disposal Act (the Act), Texas
Health and Safety Code, sec.361.024 and sec.361.061, which provide the Texas
Natural Resource Conservation Commission with the authority to regulate the
operation, management and control of solid waste under its jurisdiction.
The proposed amendment affects the Texas Solid Waste Disposal Act, Health and
Safety Code, sec.361.024 and sec.361.061.
sec.330.4. Permit Required.
(a)-(e) (No change.)
(f) A permit or registration under this chapter is not required for a
facility or site that is used as: a citizens' collection station; as a
collection and processing point for nonputrescible recyclable wastes or for
composting of leaves, grass clippings, or wood chips; a collection point for
parking-lot or street sweepings or wastes collected and received in sealed
plastic bags from such activities as periodic citywide cleanup campaigns and
cleanup of rights-of-way or roadside parks; or for the disposal of soil, dirt,
rock, sand, or other natural or man-made inert solid materials used to fill land
if the object of the fill is to make the land suitable for the construction of
surface improvements. A permit or registration is not required for a baling
operation at a recycling or materials recovery facility that handles only
nonputrescible recyclable waste. Facilities that process recyclable wastes that
contain more than incidental amounts of putrescible waste must apply for a
permit or registration as applicable under subsections (a), (d) or (q) of this
section.
(g)-(o) (No change.)
(p) A permit or registration is not required for the drying of grit trap
waste at a carwash facility as long as these wastes are disposed of in
compliance with applicable federal, state, and local regulations. Drying
facilities must comply with Chapter 116 of this title (relating to Control of
Air Pollution by Permits for New Construction or Modification) if applicable.
(q) In addition to permit exemptions established in subsection (d) of this
section, a permit is not required for any new municipal solid waste Type V
transfer station that includes a material recovery operation that meets all of
the requirements established by this subsection. Owners and operators of Type V
transfer facilities meeting the requirements of this subsection may register
their operations in lieu of permitting them. Owners and operators of transfer
stations that meet the permit exemption requirements must register their
operation in accordance with sec.330.65 of this title (relating to Registration
for Solid Waste Management Facilities), meet the additional design criteria of
sec.330.65(f) and operate the facility in accordance with Subchapter G of this
chapter (relating to Operational Standards for Solid Waste Processing and
Experimental Sites).
(1) Materials recovery. The transfer facility must recover 10% or more by
weight or weight equivalent of the total incoming nonsegregated waste stream for
reuse or recycling. The applicant must demonstrate in the registration
application the method that will be used to assure the 10% requirement is
achieved.
(2) Distance to a landfill. The transfer facility must demonstrate in the
registration application that it will transfer the remaining nonrecyclable waste
to a landfill not more than 50 miles from the facility.
(3) Exempt facilities. Transfer facilities exempted from a permit under
this subsection shall register with the executive director in accordance with
sec.330.65 and meet the additional design criteria of sec.330.65(f).
(4) Failure to operate such registered facilities in accordance with the
requirements established in Subchapter G of this chapter (relating to
Operational Standards for Solid Waste Processing and Experimental Sites) may be
grounds for revocation of the registration.
(5) If registered transfer facilities are operated in a manner which
causes or results in a nuisance, as defined in sec.330.2 of this title (relating
to Definitions), and the executive director gives written notice that a nuisance
exists, the registered facility shall cease operations and the facility's
registration shall be suspended until such time as the facility owner or
operator receives written notice of the executive director's determination that
the nuisance no longer exists.
(6) As a condition of receipt of a registration by a transfer facility
under this subsection, the owner and operator of that facility agrees that if
the facility operates in a manner which causes or results in a nuisance as
defined in sec.330.2, and the executive director sends written notice pursuant
to paragraph (5) of this subsection, the facility will immediately cease
operations until the executive director notifies the facility of its
determination that a nuisance no longer exists at the facility and that the
facility may be reopened for operation.
(7) If a registered transfer facility is notified that nuisance conditions
exist due to the operations of the facility, and that its registration is
therefore suspended, the owner or operator of the registered facility may
request that the question of whether or not a nuisance exists be decided by the
Commission. This request must be in writing and filed within 20 calendar days of
receipt of the executive director's written notice of suspension of the
registration.
This agency hereby certifies that the proposal has been reviewed by legal
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 30, 1994.
TRD-9449081
Mary Ruth Holder
Legal Services Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: November 14, 1994
For further information, please call: (512) 239-6087
Subchapter E. Permit Procedures
30 TAC sec.330.65
The amendment is proposed under the authority of the Texas Water Code,
sec.5.103, which provides the Texas Natural Resource Conservation Commission
with the authority to adopt any rules necessary to carry out the powers and
duties under the provisions of the Texas Water Code. Additionally, they are
promulgated pursuant to the Texas Solid Waste Disposal Act (the Act), Health and
Safety Code, sec.361.024 and sec.361.061, which provide the Texas Natural
Resource conservation commission with the authority to regulate the operation,
management and control of solid waste under its jurisdiction.
The proposed amendment affects the Texas Solid Waste Disposal Act, Health and
Safety Code, sec.361.024 and sec.361.061.
sec.330.65. Registration for Solid Waste Management Facilities.
(a) Applicability. This section shall apply to a municipal solid waste
management facility which is exempt from permit requirements under sec.330.4(d),
(g) and (q) [and (g)] of this title (relating to Permit Required).
(b)-(e) (No change.)
(f) Additional design criteria. This subsection applies only to transfer
stations that recover 10% or more material from the incoming nonsegregated waste
which are exempted from a permit under s330.4(q).
(1) Process area. The process area for transfer stations that recover
material from solid waste that contains putrescibles shall be maintained totally
within an enclosed building.
(2) Additional ventilation control and odor control. The facility shall be
designed to prevent nuisance odors from leaving the property boundary of the
facility. If during the operation of the facility, nuisance odors are found to
be passing the facility boundary, the facility owner or operator may be required
to suspend operations until the nuisance is abated pursuant to sec.330.4(q)(5)-
(7), and the registrant shall take all necessary measures to eliminate nuisance
odors. The applicant shall consider:
(A) air scrubber units for odor control;
(B) additional on-site buffer zones for odor control; or
(C) additional waste handling procedures, storage procedures, and clean-up
procedures for odor control when accepting putrescible waste for material
recovery. All odor control and air pollution abatement devices constructed
pursuant to this registration must obtain authorization, pursuant to Chapter 116
of this title (relating to Control of Air Pollution by Permits for New
Construction or Modifications), from the Office of Air Quality prior to start of
construction. Openings to process buildings shall be controlled to prevent
releases of nuisance odors to the atmosphere. All odor control equipment shall
be properly maintained and operated during the process operation.
(3) Operational design standards. In designing the transfer facility the
applicant shall ensure that all requirements of operation required by Subchapter
G of this chapter (relating to Operational Standards for Solid Waste Processing
and Experimental Sites) will be met.
(4) Safety plan. The applicant shall provide a written safety plan for
site workers that operate material recovery equipment or that will hand sort
recoverable material from the nonsegregated incoming waste.
This agency hereby certifies that the proposal has been reviewed by legal
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 30, 1994.
TRD-9449080
Mary Ruth Holder
Director, Legal Services Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: November 14, 1994
For further information, please call: (512) 239-6087
TITLE 34. PUBLIC FINANCE
Part I. Comptroller of Public Accounts
Chapter 3. Tax Administration
Subchapter O. State Sales and Use Tax
34 TAC sec.3.284
The Comptroller of Public Accounts proposes an amendment to sec.3.284,
concerning drugs, medicines, medical equipment, and devices. The amendment
exempts hot tubs, spas, and other similar appliances, as therapeutic appliances,
regardless of size, when the purchaser furnishes the seller a signed statement
from a doctor or other licensed practitioner of the healing arts, on the
practitioner's letterhead, specifying why the hot tub, spa, or similar appliance
is prescribed for the purchaser. The new documentation requirement will be
applied retroactively to April 15, 1993, for hot tubs, spas, and other similar
appliances seating more than four persons. The stricter documentation
requirement will apply to all hot tubs, spas, and similar appliances regardless
of size, from the effective date of this rule.
Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the rule will be in effect there will be no significant revenue
impact on the state or local government.
Mr. Reissig also has determined that for each year of the first five years the
rule is in effect the public benefit anticipated as a result of enforcing the
rule will be in providing new information regarding tax responsibilities. This
rule is adopted under the Tax Code, Title 2, and does not require a statement of
fiscal implications for small businesses. There is no significant anticipated
economic cost to persons who are required to comply with the proposed rule.
Comments on the proposal may be submitted to Joe A. Galvan, Manager, Tax
Administration Division, P.O. Box 13528, Austin, Texas 78711.
The amendment is proposed under the Tax Code, sec.111.002, which provides the
comptroller with the authority to prescribe, adopt, and enforce rules relating
to the administration and enforcement of the provisions of the Tax Code, Title
2.
The amendment implements the Tax Code, sec.151.313.
sec.3.284. Drugs, Medicines, Medical Equipment, and Devices.
(a) -(b) (No change.)
(c) Medical equipment.
(1)-(6) (No change.)
(7) Sales tax is not due on the sale, lease, or rental of therapeutic
appliances, devices, and related supplies specifically designed for those
products when sold, leased, or rented to individuals under a prescription of a
licensed practitioner of the healing arts. A hot tub, spa, or similar
appliance qualifies as a therapeutic appliance when prescribed for the purchaser
by a licensed practitioner of the healing arts. In addition to supplying the
seller with an exemption certificate, the purchaser must provide the seller a
signed statement from the doctor or other licensed practitioner of the healing
arts, on the practitioner's letterhead, specifying why the hot tub, spa, or
similar appliance is prescribed. Unless a hospital, nursing home, or other
institution qualifies for exemption under the Tax Code, sec.151. 310(a)(1) or
(2), the institution must pay sales tax on equipment and supply items used to
provide medical services unless the item qualifies for exemption under
paragraphs (1)-(3) of this subsection.
This agency hereby certifies that the proposal has been reviewed by legal
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 10, 1994.
TRD-9449246
Martin E. Cherry
Chief, General Law Section
Comptroller of Public Accounts
Earliest possible date of adoption: November 14, 1994
For further information, please call: (512) 463-4028
TITLE 37. PUBLIC SAFETY AND CORRECTIONS
Part I. Texas Department of Public Safety
Chapter 17. Administrative License Revocation
Administrative License Revocation
37 TAC sec.sec.17.1-17.16
The Texas Department of Public Safety proposes new sec. s17.1-17.16,
concerning procedures, implementation, and enforcement of Administrative License
Revocation (ALR). These new sections set forth procedures relating to issuance
of notice of suspension, administrative suspension in an uncontested case,
request for hearing and witnesses in a contested case, enforcement of
suspension, and reinstatement of license. Rules governing the conduct of
hearings and related matters shall be adopted by the State Office of
Administrative Hearings, which has jurisdiction over contested cases.
Tom Haas, Chief of Finance, has determined that for the first five-year period
the sections are in effect, there may be fiscal implications for state
government as a result of enforcing or administering the sections. The
department has no historical data on which to determine the fiscal impact of
this chapter to units of local government.
Mr. Haas 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 enhanced public safety on public highways. There will be no
effect on small or large businesses. The anticipated economic cost to persons
who are required to comply with the sections as proposed will be a reinstatement
fee of $100.
Comments on the proposal may be submitted to John C. West, Jr., Chief of Legal
Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0001,
(512) 465-2890.
The new sections are proposed pursuant to Texas Civil Statutes, Article 6687b-
1, sec.9, and Texas Civil Statutes, Article 67011-5, sec.4a, which provide for
administrative license suspensions upon certain alcohol-related violations
involving use of a motor vehicle. Such violations are the refusal or failure of
breath or blood tests.
Texas Civil Statutes, Article 6687b, Texas Civil Statutes, Article 6687b-1,
Texas Civil Statutes, Article 67011-5, and Texas Penal Code, Chapter 49 are
affected by this proposal.
sec.17.1. Scope. The procedures for notice, hearing, and appeal contained in
this title apply to suspensions and denials arising under the provisions of
Administrative License Revocation (ALR), including Texas Civil Statutes, Article
6687b-1 and Texas Civil Statutes, Article 67011-5.
sec.17.2. Definitions. The following words and terms, when used in this
chapter, shall have the following meanings, unless the context clearly indicates
otherwise.
Acquittal-A legal judgment or certification of "not guilty" of a person
charged with a crime, including a judgment following directed verdict.
Address of record -A person's most recent residence address as shown by the
records of the department in accordance with Texas Civil Statutes, Article
6687b, sec.sec.6, 14, and 20; or an alternate address provided to the department
in accordance with Texas Civil Statutes, Article 6687b, sec.44B.
Administrative License Revocation (ALR)-Refers to the suspension of a
driver's license under either Texas Civil Statutes, Article 6687b-1 for breath
or blood test failures, or under Texas Civil Statutes, Article 67011-5 for
breath or blood test refusals.
Alcohol concentration -Has the meaning contained in Texas Penal Code,
sec.49.01.
Alcohol-related or drug-related enforcement contact-Has the meaning contained
in Texas Civil Statutes, Article 6687b-1.
ALR contact-A refusal to submit a breath or blood specimen as provided by
Texas Civil Statutes, Article 67011-5, or a breath or blood test failure,
following an arrest for an offense under Texas Penal Code, sec. s49.04, 49.07,
or 49.08.
ALR report-A sworn report of an ALR contact filed by a peace officer and
submitted to the department in accordance with Texas Civil Statutes, Article
6687b-1, sec.3, or a written report of an ALR contact submitted to the
department in accordance with Texas Civil Statutes, Article 67011-5, sec.2(d)
and (e).
ALR suspension or ALR license suspension -A suspension under Texas Civil
Statutes, Article 6687b-1 for a breath or blood test failure, or a suspension
under Texas Civil Statutes, Article 67011-5 for a breath or blood test refusal.
Arresting officer -Refers to a certified Texas peace officer who arrests a
driver for an offense under Texas Penal Code, sec.sec.49.04, 49.07, or 49.08.
Breath alcohol test-Has the meaning assigned in 37 Texas Administrative Code,
sec.19.7.
Breath test operator-Refers to the individual who takes a specimen of the
driver's breath to determine alcohol concentration.
Criminal complaint -Refers to any charging instrument, including, but not
limited to, a complaint, an information, an indictment, or a similar sworn
document clearly indicating an intent to proceed with criminal prosecution.
Current address -Refers to the address given to an arresting officer by an
arrested driver at the time of arrest, as distinguished from the "address of
record."
Defendant-Refers to a driver who has received notice of ALR license
suspension and who has timely requested a hearing.
Denial-Refers to the loss of the privilege to obtain a driver's license or
permit.
Department-Has the meaning assigned in Texas Civil Statutes, Article 6687b-1.
Director-Has the meaning assigned in Texas Civil Statutes, Article 6687b-1.
Disqualification-Has the meaning assigned in Texas Civil Statutes, Article
6687b-2.
Driver-Has the meaning assigned in Texas Civil Statutes, Article 6687b.
Driver's license -Has the meaning assigned in Texas Civil Statutes, Article
6687b.
Failure, or breath or blood test failure-Refers to the analysis of a test
specimen which indicates an alcohol concentration specified in Texas Penal Code,
sec.49.01(2)(B).
Instrument or breath test instrument-Has the meaning assigned in 37 Texas
Administrative Code, sec.19.7(i).
License or license to operate a motor vehicle -Has the meaning assigned in
Texas Civil Statutes, Article 6687b.
Maintenance records -Refers to records pertaining to the inspection,
maintenance, and upkeep of the breath test instrument, on which the driver's
alcohol concentration was measured.
Nonresident-Has the meaning assigned in Texas Civil Statutes, Article 6687b.
Party-Refers to a defendant or the department.
Peace Officer-Has the meaning assigned in Texas Penal Code, sec.1.07(a).
Public place-Has the meaning assigned in Texas Civil Statutes, Article 6687b-
1.
Refusal-Refers to a refusal to submit a specimen under the provisions of
Texas Civil Statutes, Article 67011-5, sec.2.
Revocation of driver's license-Has the meaning assigned in Texas Civil
Statutes, Article 6687b.
Suspension of driver's license-Has the meaning assigned in Texas Civil
Statutes, Article 6687b.
Technical supervisor or certified breath test technical supervisor-Refers to
the person who is responsible for maintaining and directing the operation of the
breath test instrument used to analyze the specimen of the driver's breath, and
who has been certified by the department under the provisions of sec.19.5 of
this title (relating to Technical Supervisor certification).
Test record or breath alcohol test record-Means the record of a breath
alcohol test generated by a breath test instrument.
sec.17.3. Notice of Suspension.
(a) Notice of an ALR suspension may be served either by an arresting officer
or by the department.
(b) Notice given by the arresting officer. If a driver arrested for an offense
under Texas Penal Code, sec.sec.49.04, 49.07, or 49.08, submits to the taking of
a specimen of breath or blood and an analysis of the specimen shows the driver
had an alcohol concentration of a level specified in Texas Penal Code,
sec.49.01(2)(B), the arresting officer shall attempt to serve notice of driver's
license suspension personally on the arrested driver. If a driver arrested for
an offense under Texas Penal Code, sec.sec.49.04, 49.07, or 49.08, refuses to
give a specimen as designated by the arresting officer, the arresting officer
shall attempt to serve notice of driver's license suspension personally on the
arrested driver.
(c) Notice given by the department. In the event that the arresting officer
did not serve notice of suspension on the driver following an ALR contact, the
department shall mail, by certified mail, notice of suspension to the driver's
address of record, and to the driver's current address given in the ALR report,
if different. If the department cannot verify that proper notice of suspension
was served on the driver by the arresting officer following an ALR contact, the
department may serve notice of suspension. Notice is presumed received on the
fifth day after the day it is mailed.
(d) Notice given by the department to control. In any case where notice of
suspension is served by the arresting officer and notice of suspension is also
sent by the department, notice sent by the department shall be controlling.
sec.17.4. ALR Reports. All reports of ALR contacts shall be submitted on
a form approved by the department.
(1) General Information. ALR reports shall contain the following information:
(A) the identity of the arrested driver by full legal name, date of birth, and
driver's license number, if any;
(B) a statement of the officer's reasonable suspicion for stopping the driver
and the probable cause to arrest the driver. This statement may include any
other grounds known to the officer for believing the driver committed the
offense;
(C) a copy of the statutory warning delivered to the driver prior to
requesting a specimen of breath or blood;
(D) the driver's current address; and
(E) any other information required by the department on its approved form.
(2) Information specific to ALR failures. In addition to the information
stated in paragraph (1) of this section, ALR failure reports shall include the
following information:
(A) a copy of the analysis of the specimen, such as a photocopy of the breath
test result or the blood specimen test result; and
(B) a copy of the criminal complaint, sworn to under oath, that has been:
(i) filed with a magistrate; or
(ii) delivered to a local prosecuting attorney with jurisdiction over the
offense.
(3) Information specific to ALR refusals. In addition to the information
stated in paragraph (1) of this section, ALR refusal reports must show that the
driver refused to give a specimen, as evidenced by:
(A) a written refusal to give a specimen, signed by the driver; or
(B) a statement signed by the officer stating that the driver refused to give
a specimen and also refused to sign the statement requested by the officer under
Texas Civil Statutes, Article 67011-5, sec.2(c) and sec.2(e).
sec.17.5. Intake.
(a) The department may reject any ALR report and decline to prosecute any ALR
suspension.
(b) For purposes of an ALR suspension based on a breath test failure, a valid
breath alcohol test record is required. To be considered valid, the breath test
record must meet the following criteria:
(1) There must be no "invalid" message.
(2) Results must be clearly printed.
(3) All air blanks must be 0.000.
(4) The test record must bear the signature of the breath test operator. No
additional report, memo, record, or maintenance record is required to validate
the breath alcohol test.
sec.17.6. Rescission.
(a) The department may rescind any ALR suspension.
(b) If for any reason the department declines to prosecute an ALR suspension,
or rescinds suspension once imposed, then the department shall send notice of
rescission to the defendant at his address of record, and to his current
address, if different.
(c) A decision by the department to rescind notice of suspension has no
binding precedential value and the department may later prosecute a suspension
arising out of the same incident.
sec.17.7. Administrative Suspension of Driver's License. After notice of
suspension has been properly served, the department shall impose a suspension as
provided by law, unless the driver makes a timely hearing request as provided in
sec.17.8 of this title (relating to Hearing Requests).
sec.17.8. Hearing Requests. A person who receives notice of suspension
may request a hearing as provided.
(1) A hearing request must either be delivered in writing, including by
facsimile transmission, or be transmitted by telephone, to the department at its
headquarters in Austin, at the address or phone number contained in the notice
of suspension.
(2) A hearing request may be submitted on a form provided by the department. A
hearing request must contain sufficient information to enable the department to
identify the driver and to schedule the hearing. The hearing request must
include the driver's full legal name, date of birth, driver's license number,
the date of arrest, the county of arrest, and such additional non-privileged
information as may be requested by the department to schedule the hearing.
(3) A hearing request must be timely. In order to be considered timely, a
hearing request must be received by the department at its headquarters in Austin
not later than 5:00 p.m. on the 15th day after:
(A) the date notice of suspension was served by the arresting officer; or
(B) the date notice is presumed to have been received, according to the
records of the department.
(4) The department shall reject any untimely hearing request. When a written
hearing request is received and rejected, the department shall mail written
notice to the defendant that the hearing request was received and rejected, and
state the reason for rejection. When a telephone hearing request is received and
rejected, the department shall mail a written notice of the reason for rejection
only upon request.
(5) Upon receipt of a timely hearing request, the department shall schedule a
hearing and mail written confirmation to the defendant.
(6) A timely hearing request stays the suspension pending a final affirmative
decision by the administrative law judge.
(7) The department will presume that notice of hearing date, time, and
location was received on the fifth day after the day it was mailed.
sec.17.9. Pre-hearing Procedure.
(a) Witness subpoenas. Any witness may be subpoenaed in accordance with 1
Texas Administrative Code, Chapter 159.
(b) Witness requests. Certain witnesses may be requested without necessity of
a subpoena. A witness request may be included in an original written hearing
request. A witness request must be in writing, including facsimile transmission.
A witness request must be received by the department at its headquarters in
Austin not later than 5:00 p.m. five days before the date of hearing. The
department shall reject any untimely witness request. A defendant shall include
the name, agency, and address of each requested witness, if known. If some or
all of this information is unavailable to the defendant, then a brief
description of the witness' involvement or connection to the arrest or contact
will be necessary in order to identify the witness requested. Only the following
witnesses, as applicable, may be requested under this subsection:
(1) the breath test operator; or
(2) the technical supervisor.
(c) Discovery. Before a hearing, a defendant may request copies of certain
documents. The department shall mail requested documents by regular U. S. mail.
The department may charge a reasonable fee for copies of requested documents.
The following documents may be requested under this subsection, as applicable:
(1) the department's original notice of hearing;
(2) the statutory warning delivered to the driver prior to requesting a
specimen of breath or blood;
(3) a signed statement of the driver acknowledging a refusal, or a statement
of an officer attesting to the driver's refusal;
(4) a probable cause affidavit;
(5) a copy of the analysis of a specimen submitted by the driver, such as the
breath test result;
(6) a copy of the defendant's driving record; and
(7) copies of maintenance records of the breath test instrument used to
measure the driver's alcohol concentration, provided that such records will be
limited to the most recent inspection prior to and after the date that the
driver was tested.
(d) The department has the right to reschedule a hearing as provided in Texas
Civil Statutes, Article 6687b-1, sec.7(n).
sec.17.10. Hearings. ALR hearings shall be held in accordance with Texas
Civil Statutes, Article 6687b-1, and in accordance with 1 Texas Administrative
Code, Chapter 159.
sec.17.11. Out-of-State Orders and Judgments. The department shall give full
faith and credit to convictions, suspensions, denials, and disqualifications
arising in other states.
sec.17.12. Appeals.
(a) The decision of an administrative law judge is final when issued and
signed and the decision is immediately appealable without the requirement of a
motion for rehearing.
(b) To perfect an appeal, a defendant must send by certified mail a copy of
the defendant's petition, certified by the clerk of the court in which the
petition is filed, to both the department and the State Office of Administrative
Hearings at their headquarters in Austin.
(c) Review shall be based on the substantial evidence rule.
(d) Upon receipt of an appeal petition, the department shall determine whether
the defendant is entitled to a 90 day stay of suspension pending appeal, in
accordance with Texas Civil Statutes, Article 6687b-1, sec.7(h). For purposes of
determining whether an appeal stays a suspension, the department will consider
prior alcohol-related and drug-related enforcement contacts. For purposes of
this subsection, alcohol-related and drug-related enforcement contacts occurring
both prior to and after the effective date of ALR shall be considered. The date
of a prior alcohol-related or drug-related enforcement contact, not the date of
the conduct, shall be controlling.
(e) If a stay is granted pending appeal, it shall be effective from the date
the petition is filed, not from the date of hearing or decision of the
administrative law judge.
(f) A remand does not stay the suspension.
sec.17.13. Final Order of Suspension. If an administrative hearing is not
requested, then before the effective date of suspension, the department shall
mail a final order of suspension to the driver's address of record and to the
driver's current address, if different. The order shall state the length of
suspension and the procedure for reinstatement. A final order of suspension is
not considered notice of suspension for purposes of requesting an administrative
hearing under this section. A final order of suspension is presumed received on
the fifth day after the day it is mailed.
sec.17.14. Effect of Acquittal; Notification to the Department.
(a) Upon notification that a criminal charge under Texas Penal Code,
sec.sec.49.04, 49.07, or 49.08, has resulted in an acquittal, the department
shall not impose a suspension arising out of the same conduct or transaction. If
a suspension has already been imposed, the department shall rescind the
suspension and remove references to the suspension from the computerized driving
record of the defendant.
(b) To ensure that the department receives notice of acquittal, it is
recommended that the defendant send a certified copy of the judgment of
acquittal to the department at its headquarters in Austin. A defendant should
send a written request which identifies the defendant by name and by driver's
license number, states the date and county of arrest, and requests rescission of
the suspension. The department reserves the right to verify the acquittal. Upon
verification, the department shall rescind the suspension and remove references
to the suspension from the defendant's computerized driving record.
(c) For purposes of this section, the following types of dispositions of any
filed criminal complaint shall not be regarded as an acquittal:
(1) a pre-trial order of dismissal where jeopardy has not attached;
(2) a reduction of charges;
(3) a conviction on a lesser included charge;
(4) a disposition under Texas Penal Code, sec.12.45; or
(5) any discharge or dismissal brought about by a failure to bring a cause of
action to speedy trial within the time required by the state or federal
constitutions.
sec.17.15. Enforcement of Suspensions.
(a) Knowledge of a license suspension is presumed if an arresting officer
served notice of suspension on the driver, or if the department mailed notice of
suspension to the driver's address of record and to the driver's current address
given by the defendant to the arresting officer, if different.
(b) A Texas driver's license, permit, or privilege to operate a motor vehicle
in Texas, may be suspended under provisions of ALR. The loss of the privilege to
drive in Texas shall apply to unlicensed drivers and to non-residents. The
department shall not issue a driver's license to any person who is subject to an
order of suspension or denial.
(c) Upon suspension of a driver's license, a Texas licensee must surrender any
suspended license to the department. If a person cannot comply, he must submit
an affidavit to the department stating the reason why he cannot produce and
surrender the license. Failure or refusal to surrender a license may result in
the department initiating criminal proceedings against that licensee, as
provided by Texas Civil Statutes, Article 6687b, sec.32(4). A person may
surrender a suspended license by any of the following methods:
(1) A person may deliver a suspended license to an ALR senior hearing examiner
employed by the department, to any Legal Services staff member, to any uniformed
officer of the department, or to any department office during regular business
hours.
(2) A person may mail a suspended license to the Texas Department of Public
Safety, Driver Improvement and Control, Post Office Box 4040, Austin, Texas
78773-0001.
(3) Any department employee who receives a suspended license shall send the
license to the department's main headquarters in Austin.
(d) ALR suspensions shall be enforced as provided by Texas Civil Statutes,
Article 6687b, sec.34.
sec.17.16. Reinstatement. A driver's license suspended under Texas Civil
Statutes, Article 6687b-1 or under Texas Civil Statutes, Article 6701l-5 may not
be reinstated and another driver's license may not be issued until the suspended
driver or defendant files an appropriate application and pays to the department
a reinstatement fee of $100, in addition to any other fees required by law.
This agency hereby certifies that the proposal has been reviewed by legal
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 28, 1994.
TRD-9449124
James R. Wilson
Director
Texas Department of Public Safety
Earliest possible date of adoption: November 14, 1994
For further information, please call: (512) 465-2890
Part IX. Commission on Jail Standards
Chapter 300. Fees and Payments
Transfer of Felony Backlog
37 TAC sec.sec.300.51-300.63
(Editor's note: The text of the following sections proposed for repeal will
not be published. The sections may be examined in the offices of the Commission
on Jail Standards or in the Texas Register office, Room 245, James Earl Rudder
Building, 1019 Brazos Street, Austin.)
The Commission on Jail Standards proposes repeal of sec. s300.51-300.63,
concerning Fees and Payments to allow for adoption of new rules.
Jack E. Crump, executive director, has determined that there will not be fiscal
implications as a result of enforcing or administering the repeals.
Mr. Crump also has determined that for each year of the first five years the
repeals as proposed are in effect the public benefits anticipated as a result of
enforcing the repeals as proposed will be to allow adoption of current and
comprehensible new rules. There will be no effect on small businesses. There
will be no anticipated economic cost to persons who are required to comply with
the repeals as proposed.
Comments on the proposal may be submitted to Rhonda C. Long, P.O. Box 12985,
Austin, Texas 78711, (512) 463-5505.
The repeals are proposed under Government Code, Chapter 511, which provides the
Texas Commission on Jail Standards with the authority to revise, amend, or
change rules and procedures if necessary.
The statutes that are affected by these repeals are Local Government Code,
Chapter 351, sec.351.002 and sec.351.015.
sec.300.51. General.
sec.300.52. Applicable County Jail.
sec.300.53. Appropriate Facility.
sec.300.54. Administrative Order.
sec.300.55. Request for Hearing.
sec.300.56. Amendments to Administrative Orders.
sec.300.57. Limits of Transfer.
sec.300.58. Reports.
sec.300.59. Payments.
sec.300.60. Determination of Costs.
sec.300.61. Felony Backlog Inmates.
sec.300.62. Forms.
sec.300.63. Order To Accept Inmates.
This agency hereby certifies that the proposal has been reviewed by legal
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 28, 1994.
TRD-9448692
Jack E. Crump
Executive Director
Commission on Jail Standards
Earliest possible date of adoption: November 14, 1994
For further information, please call: (512) 463-5505
The Commission on Jail Standards proposes new sec.sec.300.51-300.63,
concerning Fees and Payments. Adoption of these rules will revise jail
requirements to make them concise, current, and comprehensible.
Jack E. Crump, executive director, has determined that there will not be fiscal
implications as a result of enforcing or administering the rules.
Mr. Crump also has determined that for each year of the first five years the
rules as proposed are in effect the public benefits anticipated as a result of
enforcing the rules as proposed will be to provide current and comprehensible
new rules. There will be no effect on small businesses. There will be no
anticipated economic cost to persons who are required to comply with the rules
as proposed.
Comments on the proposal may be submitted to Rhonda C. Long, P.O. Box 12985,
Austin, Texas 78711, (512) 463-5505.
The new rules are proposed under Government Code, Chapter 511, which provides
the Texas Commission on Jail Standards with the authority to adopt reasonable
rules and procedures establishing minimum standards for the custody, care, and
treatment of prisoners.
The statutes that are affected by these rules are Local Government Code,
Chapter 351, sec.351.002 and sec.351.015.
sec.300.51. General. The commission is required by Government Code, Chapter
499, sec.499.125 (concerning the Transfer of Felony Backlog) to transfer inmates
awaiting transfer to the Texas Department of Criminal Justice-Institutional
Division (TDCJ-ID) from an applicable county jail to appropriate facilities.
sec.300.52. Applicable County Jail. A jail is an applicable county jail when
the commission determines that a jail meets the following criteria:
(1) a state or federal court determines that conditions in a county jail are
unconstitutional; and
(2) on or after October 1, 1991, the percentage of inmates in the jail
awaiting transfer to the TDCJ-ID is 20% or more of the total number of inmates
in the jail.
sec.300.53. Appropriate Facility. The executive director will develop a
list of facilities which are appropriate to house the transferred inmates
following determination by the commission that a jail is an applicable county
jail. An appropriate jail may include a jail, detention center, work camp, or
correctional facility.
sec.300.54. Administrative Order. The commission will issue to the
sheriff and commissioners court (by and through the county judge) of an
applicable county jail upon determination by the commission that the jail meets
the criteria of sec.300.52 of this title (relating to Applicable County Jail) a
written administrative order to transfer felony backlog inmates to appropriate
facilities.
sec.300.55. Request for Hearing. The sheriff or commissioners court of an
applicable county jail to which the commission has issued an administrative
order may, within 15 days after the date of the order, request a hearing upon
any matter of fact or law with which he or the court disagrees. The request for
hearing shall be in writing and shall comply with sec.297.8 of this title
(relating to Request for Hearing). Upon receipt of a timely request for hearing,
the commission may schedule a hearing to be conducted at a regular or special
meeting of the commission.
sec.300.56. Amendments to Administrative Orders. The commission may review and
amend an administrative order as necessitated by changes in the status of court
orders, jail population, jail conditions, availability of appropriate facilities
or other conditions, by commission action at a regular or special meeting.
sec.300.57. Limits of Transfer. The commission will determine the number of
inmates who shall be transferred from an applicable county jail and the
frequency of transfers required to comply with this section and Government Code,
Chapter 499, sec.499.125 (concerning Transfer of Felony Backlog).
sec.300.58. Reports.
(a) The sheriff of an applicable county jail shall submit a report to the
commission of transferred inmates on a form prescribed by the commission. The
report shall be delivered to the commission not later than five days after the
date of each transfer of inmates.
(b) The sheriff of a county for which an appropriate facility receiving
transferred inmates is operated shall submit a report and billing statement to
the commission representing the costs of maintenance of transferred inmates on a
form prescribed by the commission. The report and billing statement shall be
submitted not later than five days after the 1st and 15th day of each month.
(c) Sheriffs may submit reports on forms produced by automated data processing
equipment which provide required information when approved by the executive
director. Such approved reports shall be considered forms prescribed by the
commission.
(d) A county is not eligible for payment under this section if reports are not
submitted by the sheriff or if information required by the form(s) is not
complete.
sec.300.59. Payments. The commission is liable to a county operating a
facility receiving transferred inmates for payment of the costs of maintenance
of transferred inmates. The commission is liable to counties for the payment of
costs of transportation of transferred inmates.
sec.300.60. Determination of Costs.
(a) The costs of maintenance shall be the actual costs, as determined by the
agreement between the Texas Board of Criminal Justice and the county operating
the appropriate facility receiving transferred inmates.
(b) The costs of transportation shall be the agreed cost between the
transporting county and the commission. Such costs shall be determined and
agreed upon by the commission and the transporting county prior to the movement
of inmates. The cost of transportation may be adjusted as appropriate when
evidenced by sufficient documentation and approved by the commission.
sec.300.61. Felony Backlog Inmates. This chapter is applicable only to the
transfer of inmates confined in a jail who are awaiting transfer to the TDCJ-ID
following conviction of a felony or revocation of probation, parole, or release
on mandatory supervision and to whom all paperwork and processing required under
Code of Criminal Procedure, Article 42.09, sec.8(a), (concerning Commencement of
Sentence and Delivery to Place of Confinement) for transfer have been completed.
sec.300.62. Forms. The commission adopts by reference Inmate Transfer Roster
(form ITR-1) and Transferred Inmate Maintenance Report (form Trans-1). Copies of
the forms are available at the offices of the Texas Commission on Jail Standards
at 300 West 15th Street, Suite 503, Austin, Texas, 78701).
sec.300.63. Order to Accept Inmates. The commission may order the sheriff and
commissioners court (by and through the county judge) of a county to accept
inmates transferred under this chapter when the commission determines that the
housing of transferred inmates in a facility operated by or for the county is
necessary in order to effectuate the mandated authority of the commission to
transfer inmates in accordance with Government Code, Chapter 499, sec.499.125
(concerning Transfer of Felony Backlog).
This agency hereby certifies that the proposal has been reviewed by legal
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on September 28, 1994.
TRD-9448693
Jack E. Crump
Executive Director
Commission on Jail Standards
Earliest possible date of adoption: November 14, 1994
For further information, please call: (512) 463-5505
TITLE 40. SOCIAL SERVICES AND ASSISTANCE
Part I. Texas Department of Human Services
Chapter 3. Income Assistance Services
Subchapter BB. Changes
40 TAC sec.3.2801
The Texas Department of Human Services (DHS) proposes an amendment to
sec.3.2801, concerning reporting requirements, in its Income Assistance Services
rule chapter. The purpose of the amendment is to require Food Stamp recipients
to report changes in earned income if the source, wage rate, or employment
status changes, and to eliminate the requirement that Food Stamp recipients
report changes in the total amount of allowable medical expenses. The income-
reporting requirement results from a requested waiver which was recently granted
to DHS by the United States Department of Agriculture, Food and Nutrition
Service (FNS). Elimination of medical expense reporting results from written
authorization from FNS to DHS to proceed with implementation pending proposal of
changes in federal regulations.
Burton F. Raiford, 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 government as a result of enforcing or administering the section.
Mr. Raiford also has determined that for each year of the first five years the
section is in effect the public benefit anticipated as a result of enforcing the
section will be that DHS will be in compliance with federally sanctioned Food
Stamp Program reporting requirements. 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.
Questions about the content of the proposal may be directed to Rita King at
(512) 450-4148 in DHS's Client Self-Support Services. Comments on the proposal
may be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-
357, Texas Department of Human Services, W-402, P.O. Box 149030, Austin, Texas
78714-9030, within 30 days of publication in the Texas Register.
The amendment is proposed under the Human Resources Code, Title 2, Chapters 22
and 33, which provides the department with the authority to administer public
and nutritional assistance programs.
The amendment implements the Human Resources Code, sec.22.001 and sec.33.002.
sec. 3.2801. Reporting Requirements.
(a) (No change.)
(b) Changes that food stamp clients must report include those stipulated in 7
Code of Federal Regulations sec.273.12(a)(1) [and as directed by the United
States Department of Agriculture, Food and Nutrition Service, to not require
households to report changes in medical expenses during a certification period]
, except for the following.
(1) Reporting medical expenses. As directed by the United States
Department of Agriculture, Food and Nutrition Service households are not
required to report changes in medical expenses during a certification period.
(2) Reporting income. DHS requires households to report changes in earned
income if the source, wage rate, or employment status changes.
(3) Medical expenses. DHS does not require households to report changes in
the total amount of allowable medical expenses.
This agency hereby certifies that the proposal has been reviewed by legal
counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on October 5, 1994.
TRD-9449071
Nancy Murphy
Section Manager, Media and Policy Services
Texas Department of Human Services
Proposed date of adoption: December 1, 1994
For further information, please call: (512) 450-3765