Proposed Rules Title 16

TITLE 16. ECONOMIC REGULATION

PART 2. PUBLIC UTILITY COMMISSION OF TEXAS

CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS

SUBCHAPTER B. CUSTOMER SERVICE AND PROTECTION

The Public Utility Commission of Texas (commission) proposes amendments to 16 Texas Administrative Code (TAC) §25.43, relating to Provider of Last Resort (POLR). This amended rule will update the POLR formulas for residential, and small and medium commercial customer classes to ensure that POLR rates protect POLR customers from excessive rates while ensuring the POLR providers are not overly exposed to risks associated with taking on unexpected customers following a POLR event.

Growth Impact Statement

The agency provides the following governmental growth impact statement for the proposed rule, as required by Texas Government Code §2001.0221. The agency has determined that for each year of the first five years that the proposed rule is in effect, the following statements will apply:

(1) the proposed rule will not create a government program and will not eliminate a government program;

(2) implementation of the proposed rule will not require the creation of new employee positions and will not require the elimination of existing employee positions;

(3) implementation of the proposed rule will not require an increase and will not require a decrease in future legislative appropriations to the agency;

(4) the proposed rule will not require an increase and will not require a decrease in fees paid to the agency;

(5) the proposed rule will not create a new regulation;

(6) the proposed rule will not expand, limit, or repeal an existing regulation;

(7) the proposed rule will not change the number of individuals subject to the rule's applicability; and

(8) the proposed rule will not affect this state's economy.

Fiscal Impact on Small and Micro-Businesses and Rural Communities

There is no adverse economic effect anticipated for small businesses, micro-businesses, or rural communities as a result of implementing the proposed rule. Accordingly, no economic impact statement or regulatory flexibility analysis is required under Texas Government Code §2006.002(c).

Takings Impact Analysis

The commission has determined that the proposed rule will not be a taking of private property as defined in chapter 2007 of the Texas Government Code.

Fiscal Impact on State and Local Government

Mariah Benson, Economist, Market Analysis Division, has determined that for the first five-year period the proposed rule is in effect, there will be no fiscal implications for the state or for units of local government under Texas Government Code §2001.024(a)(4) as a result of enforcing or administering the sections.

Public Benefits

Ms. Benson 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 the adoption of the proposed amendments will be increased market competition and increased options for customers when the Electric Reliability Council of Texas (ERCOT) real-time settlement point prices rise above the POLR formula. Ms. Benson has also determined that the proposed section will also ensure that the POLR formula will strike a more appropriate balance between costs paid by POLR customers and risks assumed by POLR providers than the existing rule.

Local Employment Impact Statement

For each year of the first five years the proposed section is in effect, there should be no effect on a local economy; therefore, no local employment impact statement is required under Texas Government Code §2001.022.

Costs to Regulated Persons

Texas Government Code §2001.0045(b) does not apply to this rulemaking because the commission is expressly excluded under subsection §2001.0045(c)(7).

Public Hearing

The commission staff will conduct a public hearing on this rulemaking if requested in accordance with Texas Government Code §2001.029. The request for a public hearing must be received by October 6, 2022. If a request for public hearing is received, commission staff will file in this project a notice of hearing.

Public Comments

Interested persons may file comments electronically through the interchange on the commission's website. Comments must be filed by October 6, 2022. Comments should be organized in a manner consistent with the organization of the proposed rules. The commission invites specific comments regarding the costs associated with, and benefits that will be gained by, implementation of the proposed rule. The commission will consider the costs and benefits in deciding whether to modify the proposed rules on adoption. All comments should refer to Project Number 53820.

Each set of comments should include a standalone executive summary as the last page of the filing. This executive summary must be clearly labeled with the submitting entity's name and should list each substantive recommendation made in the comments. Citations to detailed discussion in the comments are permissible but not required.

Statutory Authority

The amended rule is adopted under PURA §14.002, which provides the commission with the authority to make adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, §39.106, which requires that the commission designate providers of last resort.

Cross Reference to Statute: Public Utility Regulatory Act §14.002 and §39.106.

§25.43.Provider of Last Resort (POLR).

(a) - (i) (No change.)

(j) LSPs. This subsection governs the selection and service of REPs as LSPs.

(1) - (2) (No change.)

(3) For the purpose of calculating the POLR rate for each customer class in each POLR area, an EFL must be completed by the LSP that has the greatest market share in accordance with paragraph (2) of this subsection. The Electricity Facts Label (EFL) must be supplied to commission staff electronically for placement on the commission webpage by the 10th of each month [~~January 1 of each year, and more often if there are changes to the non-bypassable charges~~]. Where REP-specific information is required to be inserted in the EFL, the LSP supplying the EFL must note that such information is REP-specific.

(4) - (5) (No change.)

(k) - (l) (No change.)

(m) Rates applicable to POLR service.

(1) (No change.)

(2) Subparagraphs (A) - (C) of this paragraph establish the maximum rate for POLR service charged by an LSP. An LSP may charge a rate less than the maximum rate if it charges the lower rate to all customers in a mass transition that are in the same class and POLR area.

(A) Residential customers. The LSP rate for the residential customer class must be determined by the following formula: LSP rate (in $ per kWh) = (Non-bypassable charges + LSP customer charge + LSP energy charge) / kWh used, where:

(i) (No change.)

(ii) LSP customer charge must be $0.09 [~~$0.06~~ ] per kWh.

(iii) Beginning on the 1st of each month, an LSP energy charge must be the average of the actual Real-Time Settlement Point Prices (RTSPPs) for the applicable load zone for the 30-day period ending on the 20th day of the preceding calendar month [~~previous 12-month period ending September 1 of the preceding year~~] (the historical average RTSPP) multiplied by the number of kWhs the customer used during that billing period and further multiplied by 120%. The LSP energy charge must not exceed 140% of the preceding month's LSP energy charge multiplied by the cap adjustment factor. The value of the cap adjustment factor is set to 1.0 every calendar year. At any time commission staff can file a recommendation for the commission to set a different cap adjustment factor. A LSP offering POLR service must declare the cap adjustment factor on the EFL. [~~In no instance may the LSP energy charge exceed 120% of the previous year's LSP energy charge.~~] The applicable load zone will be the load zone located partially or wholly in the customer's TDU service territory with the highest average under the historical average RTSPP calculation.

(iv) (No change.)

(B) Small and medium non-residential customers. The LSP rate for the small and medium non-residential customer classes must be determined by the following formula: LSP rate (in $ per kWh) = (Non-bypassable charges + LSP customer charge + LSP demand charge + LSP energy charge) / kWh used, where:

(i) - (iii) (No change.)

(iv) Beginning on the 1st of each month, LSP energy charge must be the average of the actual RTSPPs for the applicable load zone for the 30-day period ending on the 20th day of the preceding calendar month [~~previous 12-month period ending September 1 of the preceding year~~] multiplied by the number of kWhs the customer used during that billing period and further multiplied by 125%. [~~In no instance may the~~] The LSP energy charge must not exceed 140% [~~125%~~] of the preceding month's [~~previous year's~~] LSP energy charge multiplied by the cap adjustment factor. The value of the cap adjustment factor is set to 1.0 every calendar year. At any time commission staff can file a recommendation for the commission to set a different cap adjustment factor. A LSP offering POLR service must declare the cap adjustment factor on the EFL. The applicable load zone will be the load zone located partially or wholly in the customer's TDU service territory with the highest average under the historical average RTSPP calculation.

(v) (No change.)

(C) Large non-residential customers. The LSP rate for the large non-residential customer class must be determined by the following formula: LSP rate (in $ per kWh) = (Non-bypassable charges + LSP customer charge + LSP demand charge + LSP energy charge) / kWh used, where:

(i) - (iv) (No change.)

(3) (No change.)

(4) On a showing of good cause by an affected person, the commission may direct an [~~permit the~~] LSP to adjust the rate prescribed by paragraph (2) of this subsection, if necessary to ensure that the rate is sufficient to allow an [~~the~~] LSP to recover its costs of providing service. Notwithstanding any other commission rule to the contrary, such rates may be adjusted on an interim basis for good cause shown and after at least 10 business days' notice and an opportunity for hearing on the request for interim relief. Any adjusted rate must be applicable to all LSPs charging the rate prescribed by paragraph (2) of this subsection to the specific customer class, within the POLR area that is subject to the adjustment.

(5) (No change.)

(n) - (w) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 15, 2022.

TRD-202203711

Adriana Gonzales

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: October 30, 2022

For further information, please call: (512) 936-7322

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 60. PROCEDURAL RULES OF THE COMMISSION AND THE DEPARTMENT

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 60, Subchapter A, §60.1; Subchapter B, §§60.20 - 60.23; Subchapter D, §§60.40 - 60.42; Subchapter F, §§60.80, 60.81, and 60.83; Subchapter G, §§60.100 - 60.102; proposes new rules at Subchapter C, §60.36; Subchapter D, §60.43; and new Subchapter L, §60.600 and §60.601; and proposes the repeal of existing rules at Subchapter D, §60.36, regarding the Procedural Rules of the Commission and the Department. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 60 implement Texas Occupations Code, Chapter 51, the enabling statute of the Texas Commission of Licensing and Regulation (Commission) and the Department, and other laws applicable to the Commission and the Department.

The Chapter 60 rules are the procedural rules of the Commission and the Department. These rules apply to all of the agency's programs and to all license applicants and licensees, except where there is a conflict with the statutes and rules of a specific program.

The proposed rules update multiple subchapters and sections under Chapter 60. These changes include: (1) substantive and clean up changes suggested by the General Counsel's Office and during past strategic planning sessions; (2) changes as a result of the required four-year rule review conducted under Texas Government Code §2001.039; and (3) changes as a result of House Bill (HB) 1560, Article 1, Sec. 1.11, 87th Legislature, Regular Session (2021), the Department's Sunset legislation.

The proposed rules are necessary to update the current processes and procedures; to reflect the current authority and responsibilities of the Commission, the Executive Director, and the Department; to clarify and supplement the existing rule provisions; to implement necessary statutory requirements and changes; to promote consistency in terminology; and to reorganize and clean up existing rules where necessary. The Department expects to propose additional changes to Chapter 60 in the future in separate rulemakings.

Substantive and Clean Up Changes

The proposed rules include substantive and clean up changes suggested by the General Counsel's Office and during past strategic planning sessions. These changes include updates to the rules regarding applicability; general powers and duties of the Department and the Executive Director; license eligibility after revocation; criminal history and license eligibility; charges for providing copies of public information; rulemaking; and Department personnel. The changes also include reorganization of existing rules and clean up changes in terminology. The proposed rules make editorial changes to "Commission," "Department," and "Executive Director" to use lower case terminology to be consistent with the statutes and consistent across the Chapter 60 rule subchapters.

Four-Year Rule Review Changes

The proposed rules include changes as a result of the required four-year rule review conducted under Texas Government Code §2001.039. The Department conducted the required rule review of the rules under 16 TAC Chapter 60, and the Commission readopted the rule chapter in its entirety and in its current form. (Proposed Rule Review, 46 TexReg 2589, April 16, 2021. Adopted Rule Review, 46 TexReg 4701, July 30, 2021).

In response to the Notice of Intent to Review that was published, the Department received public comments from six interested parties regarding Chapter 60, with two of these interested parties commenting on the criminal history rules under Subchapter D. The two interested parties commented that a person with a criminal history should still be able to obtain a license. The Department did not propose any changes to the rules based on these public comments. The proposed rules provide the license eligibility requirements for persons with criminal histories in accordance with the applicable statutes and the Department's criminal conviction guidelines.

The proposed rules include changes identified by Department staff during the rule review process. These changes are reflected throughout the proposed rules and include updates to the rules regarding Commission meeting procedures; general powers and duties of the Department and the Executive Director; imposing sanctions and penalties; criminal history and license eligibility; fees; and rulemaking. The changes also include clarifying the rules, using plain talk language, and making the same editorial changes to "Commission," "Department," and "Executive Director" to use lower case terminology.

Bill Implementation

The proposed rules include changes as a result of House Bill (HB) 1560, Article 1, Sec. 1.11, 87th Legislature, Regular Session (2021), the Department's Sunset legislation. This section of HB 1560 amended Texas Occupations Code §51.4012(a), License Eligibility Requirements Regarding Applicant's Background; Determination Letter, to remove the "honesty, trustworthiness, or integrity" provision as a factor for license eligibility. The proposed rules implement this section of HB 1560 by repealing the same provision from the rules under Subchapter D.

SECTION-BY-SECTION SUMMARY

Subchapter A. General Provisions.

The proposed rules amend §60.1, Authority. The proposed rules update the title of the section to "Authority and Applicability" to reflect the scope of the rule; clarify the statutory authority under which the rules are promulgated; and explain the interaction between this rule chapter and the statutes and rules of the programs regulated by the Commission and the Department. The proposed rules make editorial changes to "Commission" and "Department" to use lower case terminology.

Subchapter B. Powers and Responsibilities.

The proposed rules amend §60.20, General Powers and Duties of the Commission. The proposed rules make clean-up changes. The proposed rules make editorial changes to "Commission" and "Department" to use lower case terminology.

The proposed rules amend §60.21, Commission Meetings--Procedures. The proposed rules make clean-up and reorganization changes; add provisions for electronic signatures; and update the provisions regarding providing public comments at the commission meetings. The proposed rules make editorial changes to "Commission" to use lower case terminology.

The proposed rules amend §60.22, General Powers and Duties of the Department and the Executive Director. The proposed rules update the provisions regarding the powers and duties of the Executive Director and the Department; clarify the Executive Director's duties pursuant to a Governor-issued executive order or proclamation declaring a state of disaster; and make clean-up changes. The proposed rules make editorial changes to "Commission," "Department," and "Executive Director" to use lower case terminology.

The proposed rules amend §60.23, Commission and Executive Director--Imposing Sanctions and Penalties. The proposed rules update the provisions regarding the authority of the Commission and the Executive Director to impose sanctions for violations related to inspections and investigations and related to criminal history and license eligibility; align the rule language with the sanctions authority under Texas Occupations Code §51.353(a) and §51.103(c)(1); and clarify that a combination of sanctions or administrative penalties may be imposed.

Subchapter C. License Applications.

The proposed rules update the title of Subchapter C to "License Applications and Renewals" to reflect the scope of the subchapter.

The proposed rules add new rule §60.36, License Eligibility After Revocation. Current §60.36 under Subchapter D is being repealed and relocated in part to Subchapter C as new §60.36. Subchapter C includes rule sections in the series §§60.30-60.39, and Subchapter D includes rule sections in the series §§60.40-60.49.

New §60.36 under Subchapter C includes subsections (a) through (c) from current §60.36 under Subchapter D. These provisions address license revocations that are not due to criminal history. This rule implements Texas Occupations Code §51.355, License Eligibility of Person Whose License Has Been Revoked. The statutory reference was added to the proposed rules for clarity. The proposed rules also add language reflecting the Department's insufficient funds fee policy.

Subchapter D. Criminal History and License Eligibility.

The proposed rules repeal existing rule §60.36, License Eligibility After Denial or Revocation. Current §60.36 under Subchapter D is being repealed, and the provisions are being relocated. Subchapter C includes rule sections in the series §§60.30 - 60.39, and Subchapter D includes rule sections in the series §§60.40 - 60.49.

The subsections of current §60.36 under Subchapter D have been relocated as follows: (1) subsections (a) - (c), which address revocations that are not due to criminal history, have been moved to new §60.36 under Subchapter C; (2) subsection (a), which also applies to revocations due to criminal history, has been copied and added to current §60.40 as new subsection (b) and current §60.41 as new subsection (c); (3) subsection (d) has been moved to current §60.40 as new subsection (c)(2); and (4) subsection (e) has been moved to new §60.43.

The proposed rules amend §60.40, License Eligibility for Persons with Criminal Convictions. Subsection (a) is revised to align the text more closely with the statute, Texas Occupations Code §53.021, Authority to Revoke, Suspend, or Deny License. The provision in new subsection (b) was copied from current §60.36(a) under Subchapter D, and the statutory reference was added for clarity. This rule implements Texas Occupations Code §51.355, License Eligibility of Person Whose License Has Been Revoked, as it relates to revocations based on criminal history.

Current subsection (b) is re-lettered as new subsection (c) with a new heading and organization. The incarceration provisions are grouped together under subsection (c). Existing subsection (c)(1) prohibits a person who is currently incarcerated from obtaining or renewing a license issued by the Department. The provision in new subsection (c)(2), which was relocated from §60.36(d) under Subchapter D, requires a person whose license was revoked by operation of law under Occupations Code §53.021(b) for imprisonment after a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision, to wait until release from imprisonment to apply for a license issued by the Department. New subsection (c)(3) adds an exception to these provisions for certain student permits issued to persons enrolled in the Windham School District, which is a school district operated by the Texas Department of Criminal Justice for incarcerated persons. The provisions in subsection (c)(3) are necessary to allow incarcerated persons to attend barbering or cosmetology school while in prison and to accumulate educational hours towards licenses issued in the barbering and cosmetology program. These permits do not permit students to practice barbering or cosmetology outside of a licensed school setting.

The proposed rules amend §60.41, License Eligibility for Persons with Deferred Adjudications or Non-Conviction Activities. The proposed rules update the title of the section to "License Eligibility for Persons with Deferred Adjudications or Other Criminal History" to reflect the changes in the section. The proposed rules amend subsection (a) to add the statutory reference to Texas Occupations Code §51.356, Deferred Adjudication; License Suspension, License Revocation, or Denial or Refusal to Renew License, for clarity and to make other clean-up changes.

The proposed rules amend subsection (b) to add the statutory reference to Texas Occupations Code §51.4012(a), License Eligibility Requirements Regarding Applicant's Background; Determination Letter, for clarity and to implement HB 1560, Article 1, Section 1.11. HB 1560 amended Texas Occupations Code §51.4012(a) to remove the "honesty, trustworthiness, or integrity" provision as a factor for license eligibility, along with other editorial changes. The proposed rules make the same changes to the rules.

The provision in new subsection (c) was copied from current §60.36(a) under Subchapter D, and the statutory reference was added for clarity. This rule implements Texas Occupations Code §51.355, License Eligibility of Person Whose License Has Been Revoked, as it relates to revocations based on criminal history.

The proposed rules amend §60.42, Criminal History Evaluation Letters. The proposed rules update subsection (b) to implement HB 1560, Article 1, Sec. 1.11. HB 1560 amended Texas Occupations Code §51.4012(a) to remove the "honesty, trustworthiness, or integrity" provision as a factor for license eligibility, along with other editorial changes. The proposed rules make the same changes to the rules. The proposed rules also clean up a statutory reference in subsection (h).

The proposed rules add new rule §60.43, License Denial or Revocation for Certain Health Professionals with a Criminal History. The provisions in this new section were moved from current §60.36(e) under Subchapter D. The existing provisions have been supplemented. This section implements Texas Occupations Code, Chapter 108, Subchapter B, Automatic Denial or Revocation of Health Care Professional License, for the specified health-related programs.

Subchapter F. Fees.

The proposed rules amend §60.80, Program Fees. The proposed rules clarify the existing language regarding program fees. The proposed rules make editorial changes to "Commission" and "Department" to use lower case terminology.

The proposed rules amend §60.81, Charges for Providing Copies of Public Information. The proposed rules adopt by reference the Office of the Attorney General rules regarding charges for copies of public information and update the rule citations.

The proposed rules amend §60.83, Late Renewal Fees. The proposed rules add clarifying language to the existing provisions regarding renewal fees and late renewal fees. The proposed rules also restructure and plain talk the language under subsection (c). This rule implements Texas Occupations Code §51.401, License Expiration and Renewal.

Subchapter G. Rulemaking.

The proposed rules amend §60.100, Rulemaking. The proposed rules clean up a statutory reference and make editorial changes to "Commission" and "Department" to use lower case terminology.

The proposed rules amend §60.101, Negotiated Rulemaking. The proposed rules make editorial changes to "Commission" and "Department" to use lower case terminology.

The proposed rules amend §60.102, Petition for Adoption of Rules. The proposed rules provide additional details regarding rulemaking petitions submitted to the Department under Texas Government Code §2001.021, Petition for Adoption of Rules. These provisions include: who is an "interested person" as defined under the statute and rules; what information must be provided for a rulemaking petition to be considered; the reasons why a rulemaking petition will be denied; where and how the rulemaking petition shall be submitted to the Department; the Department's responsibilities in responding to a rulemaking petition; and the handling of repetitive rulemaking petitions.

Subchapter L. Department Personnel.

The proposed rules add new Subchapter L, Department Personnel. This new subchapter includes personnel-related rules that are required by statute.

The proposed rules add new §60.600, Department Employee Training and Education. This new rule implements Texas Government Code, Chapter 656, Subchapter C, Training, and is required by Texas Government Code §656.048, Rules Relating to Training and Education. This rule addresses training and education programs for Department employees; the tuition reimbursement program; training with extended absence from job duties; and the payment of costs and expenses for approved training. The rule incorporates by reference the Department's personnel manual.

The proposed rules add new §60.601, Department Sick Leave Pool. This new rule implements Texas Government Code, Chapter 661, Subchapter A, State Employee Sick Leave Pool, and is required by Texas Government Code §661.002, Sick Leave Pool. This rule provides that the Department's sick leave pool shall be administered by the Executive Director and that the Executive Director shall develop and prescribe policies and procedures for the operation of the sick leave pool and include those policies and procedures in the Department's personnel manual.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, enforcing or administering the proposed rules does not have foreseeable implications relating to costs or revenues of state governments or local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect a local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be having procedural rules that are more comprehensive and that give applicants, licensees, and the public a better understanding of their rights and responsibilities with the Department and what to expect when interacting with the Commission and the Department. The proposed rule changes further explain the Department's authority, and allow applicants and licensees who have criminal histories to be better aware of the statutory requirements on the Department, and of its procedures, regarding denying applications and revoking licenses of those individuals. The proposed rules provide additional details to the public about Commission meeting procedures, providing public comments at Commission meetings, and submitting rulemaking petitions to the Department.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules. The changes made by the proposed rules clean up rule language and terms, reorganize the rules, clarify existing rules, and establish in rule current department policy, none of which create a probable economic cost to any person.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Because the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules create a new regulation.

6. The proposed rules expand, limit, or repeal an existing regulation.

7. The proposed rules do not increase or decrease the number of individuals subject to the rules' applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

The proposed rules add new rules regarding TDLR employee training and education and TDLR's sick leave pool as required by statute. The proposed rules relocate an existing rule and create an expanded new rule for license denials and revocations for certain health professionals with criminal histories.

The proposed rules expand existing regulations by adding language that makes clear the rules' applicability to each program regulated by the Department; making additions to the procedures for Commission meetings and detailing the procedures for addressing the Commission; clarifying the Executive Director's authority to implement the Governor's executive orders and proclamations; broadening the Commission and Executive Director's authority for imposing sanctions and penalties to include violations committed during an inspection or investigation; adding language to clarify the Commission's and Executive Director's authority related to applicants with criminal convictions or criminal histories; and listing the requirements for a petition for adoption of rules.

The proposed rules repeal the "honesty, trustworthiness, or integrity" provision in the rules to implement HB 1560, Sec. 1.11, the Department's Sunset legislation.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted electronically on the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Monica Nuñez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §60.1

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The proposed rules also are proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

In addition, the proposed rules are proposed under the authority of other state laws that apply to state agencies. These laws include Texas Occupations Code, Chapters 55 and 108 (Subchapter B); Texas Government Code, Chapters 551, 552, 656 (Subchapter C), 661 (Subchapter A), 2001, 2005, 2008, 2009, and 2110; Civil Practice and Remedies Code, Chapter 154; and Family Code Chapters 231 and 232.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapter 51, and the program statutes for all the Department programs: Agriculture Code, Chapter 301 (Weather Modification and Control); Business and Commerce Code, Chapter 607 (Motor Fuel Metering and Quality); Education Code, Chapter 1001 (Driver and Traffic Safety Education); Government Code, Chapters 171 (Court-Ordered Programs); and 469 (Elimination of Architectural Barriers); Health and Safety Code, Chapters 401, Subchapter M (Laser Hair Removal); 754 (Elevators, Escalators, and Related Equipment); and 755 (Boilers); Labor Code, Chapter 91 (Professional Employer Organizations); Occupations Code, Chapters 202 (Podiatrists); 203 (Midwives); 401 (Speech-Language Pathologists and Audiologists); 402 (Hearing Instrument Fitters and Dispensers); 403 (Dyslexia Practitioners and Therapists); 451 (Athletic Trainers); 455 (Massage Therapy); 506 (Behavioral Analysts); 605 (Orthotists and Prosthetists); 701 (Dietitians); 802 (Dog or Cat Breeders); 1151 (Property Tax Professionals); 1152 (Property Tax Consultants); 1202 (Industrialized Housing and Buildings); 1302 (Air Conditioning and Refrigeration Contractors); 1304 (Service Contract Providers and Administrators); 1305 (Electricians); 1601 (Barbers); 1602 (Cosmetologists); 1603 (Barbers and Cosmetologists); 1802 (Auctioneers); 1901 (Water Well Drillers); 1902 (Water Well Pump Installers): 1952 (Code Enforcement Officers); 1953 (Sanitarians); 1958 (Mold Assessors and Remediators); 2052 (Combative Sports); 2303 (Vehicle Storage Facilities); 2308 (Vehicle Towing and Booting); 2309 (Used Automotive Parts Recyclers); 2310 and 2312 (Motor Fuel Metering and Quality); and 2402 (Transportation Network Companies); and Transportation Code, Chapters 551A (Off-Highway Vehicle Training and Safety); and 662 (Motorcycle Operator Training and Safety).

In addition, the statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 53, 55, and 108 (Subchapter B); Texas Government Code, Chapters 411 (Subchapter F), 551, 552, 656 (Subchapter C), 661 (Subchapter A), 2001, 2005, 2008, 2009, and 2110; Civil Practice and Remedies Code, Chapter 154; and Family Code, Chapters 231 and 232. No other statutes, articles, or codes are affected by the proposed rules.

§60.1.Authority and Applicability.

(a) This chapter is promulgated under the authority of Texas Occupations Code, Chapter 51 and other state laws applicable to state agencies. [~~This chapter applies except in the event of a conflict with other statutory provisions related to specific programs regulated by the Commission and the Department.~~]

(b) This chapter applies to each program regulated by the commission and the department. The provisions of this chapter are in addition to all other statutes and rules that apply to a specific program. The provisions of this chapter apply except in the event of a conflict with specific statutes and rules governing a specific program.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 16, 2022.

TRD-202203725

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 30, 2022

For further information, please call: (512) 475-4879

SUBCHAPTER B. POWERS AND RESPONSIBILITIES

16 TAC §§60.20 - 60.23

STATUTORY AUTHORITY

§60.20.General Powers and Duties of the Commission.

(a) The commission [~~Commission~~] shall have primary responsibility for policy-making activities including but not limited to:

(1) setting fees;

(2) adopting rules;

(3) imposing sanctions and penalties; and

(4) issuing final orders in contested cases.

(b) The commission [~~Commission~~] shall have the sole responsibility for the adoption of rules proposed by the department [~~Department~~] or the commission [~~Commission~~].

(c) The commission [~~Commission~~] shall provide reasonable accommodations, as required by the Americans with Disabilities Act of 1990, Public Law 101-336 and any subsequent amendments, for the public to participate in the programs regulated by the department [~~Department~~].

(d) Upon request, the commission [~~Commission~~ ] shall provide reasonable access to persons who do not speak English to the programs regulated by the department [~~Department~~].

§60.21.Commission Meetings--Procedures.

(a) Every regular, special, or called meeting of the commission shall be announced and conducted in accordance with [~~Commission shall be open to the public as provided by the~~] Texas Government Code, Chapter 551, [~~("the~~] Open Meetings Act[")]. These meetings shall be open to the public as provided by the Open Meetings Act.

(b) Meetings will be conducted according to the current edition of Robert's Rules of Order Newly Revised in all instances to which they are applicable as long as they are not inconsistent with the Texas Constitution or the statutes or rules applicable to the commission [~~constitution, the statutes and the rules of the Commission~~]. Any Robert's Rules of Order Newly Revised may be modified as deemed necessary by the presiding officer for the proper conduct of the meeting subject to an objection by a commission [~~Commission~~] member.

(c) A quorum of [~~for~~] the commission [~~Commission~~] is four members, which is a majority of all the members of the commission [~~Commission~~ ] as designated by statute. When a quorum is present, a motion before the commission [~~Commission~~] is carried by an affirmative vote of the majority of the commission [~~Commissioner~~] members present that are participating in the vote.

(d) As a member of the commission, the presiding officer may make motions without the necessity of relinquishing the chair subject to an objection from a commission member.

(e) The department staff may use the commissioners' electronic signatures on written orders and decisions for actions taken during the commission meeting, unless otherwise directed.

(f) [~~(d)~~] The presiding officer may limit the number and length of comments provided on any item on the agenda subject to an objection from a commission [~~Commission~~] member.

~~[(e) As a member of the Commission, the presiding officer may make motions without the necessity of relinquishing the chair subject to an objection from a Commission member.]~~

(g) [~~(f)~~] The commission [~~Commission~~] shall provide the public with a reasonable opportunity to address [~~appear before~~] the commission [~~Commission and to speak~~] on issues [~~any issue~~] under the commission’s [~~Commission's~~] jurisdiction.

(1) A person who wants [~~Persons wishing~~] to speak during [at] a commission [~~Commission~~] meeting must register in accordance with the commission meeting instructions. [~~may sign in at the beginning of the meeting and~~] The person may speak during the public comment portion of the meeting, or, at the discretion of the presiding officer, during the discussion of a specific agenda item.

(2) The commission or the department may provide instructions regarding the presentation of public comments during a commission meeting.

§60.22.General Powers and Duties of the Department and the Executive Director.

(a) The executive director [~~Executive Director~~] shall have primary responsibility to manage the operations and administration of the department [~~Department~~] and its programs as provided by Texas Occupations Code, Chapter 51 and other applicable law, including but not limited to:

(1) issuing and renewing licenses;

(2) resolving complaints;

(3) conducting investigations and inspections;

(4) imposing [~~agreed order~~] sanctions and administrative penalties for agreed orders and default orders; and

(5) approving, administering, or providing for the administration of exams.

(b) The executive director [~~Executive Director~~] may approve agreed orders and default orders in contested cases and shall have authority to issue other orders as provided by law or as delegated by the commission [~~Commission~~].

(c) The department [~~Executive Director~~] may propose rules for publication in the Texas Register as delegated by the commission [~~Commission~~].

(d) The executive director [~~Executive Director~~] may implement any executive [~~emergency~~] orders or proclamations declaring a state of disaster issued by the governor [~~Governor~~] under Texas Government Code, Chapter 418, to suspend or amend existing statutes and rules.

(1) The executive director [~~Executive Director~~] will notify the commission [~~Commission~~] of the department’s [~~Department's~~] actions to comply with the governor’s [~~Governor's~~] executive [~~emergency~~] orders or proclamations.

(2) The executive director and the department will implement the governor's executive orders or proclamations within the existing authority of Texas Occupations Code, Chapter 51, the rules in this chapter, and the laws and rules of the programs regulated by the commission and the department.

(e) For any license that expires during a state of disaster declared by the governor under Texas Government Code, Chapter 418, or the following recovery period, the executive director [~~Executive Director~~] may issue to the license holder an emergency license under Texas Occupations Code §51.408. The executive director [~~Executive Director~~] may implement policies as necessary to administer this subsection. The holder of an emergency license issued under this subsection is not required to post or display the emergency license.

§60.23.Commission and Executive Director--Imposing Sanctions and Penalties.

(a) The commission or executive director may sanction a license holder, applicant, or other person, if the person:

(1) obtains or attempts to obtain a license by fraud or false representation;

(2) falsifies any document submitted to the department or commission;

(3) refuses to permit or fails to cooperate in an inspection or investigation; [or] interferes with an inspection or investigation conducted by an authorized representative of the commission or department; or threatens or intimidates an authorized representative of the commission or department in connection with an inspection or investigation;

(4) permits the use or display of a license by a person not authorized by law to use that license;

(5) has a conviction, a deferred adjudication, or other criminal history that affects license eligibility as prescribed under Subchapter D [~~has been convicted of, or placed on deferred adjudication for, an offense identified in Texas Occupations Code, §53.021(a)~~]; or

(6) violates Texas Occupations Code, Chapter 51, a law establishing a regulatory program administered by the department, or a rule or order of the commission or the executive director [~~department~~].

(b) The commission or executive director may:

(1) issue a written reprimand;

(2) revoke, suspend, or deny the person's license;

(3) place on probation a person whose license has been suspended or revoked;

(4) issue a restricted license to the person in accordance with Texas Occupations Code, Chapter 51, Subchapter G;

(5) refuse to renew the person's license; [or]

(6) impose administrative penalties against the person after considering the factors set forth in Texas Occupations Code[,] §51.302(b); or [.]

(7) take any combination of actions under paragraphs (1) - (6).

(c) If the suspension or revocation of a license is probated, the commission or executive director may require the person to:

(1) report regularly to the department on matters that are the basis of the probation;

(2) limit practice to the areas prescribed by the commission or executive director;

(3) complete professional education until the person attains a degree of skill satisfactory to the commission or executive director in those areas that are the basis for the probation; or

(4) complete any other remedial actions agreed to by the parties.

(d) If a person has outstanding administrative penalties, the department may place a hold on the person's license and the person may not renew the license until the administrative penalties are paid.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 16, 2022.

TRD-202203726

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 30, 2022

For further information, please call: (512) 475-4879

SUBCHAPTER C. LICENSE APPLICATIONS AND RENEWALS

16 TAC §60.36

STATUTORY AUTHORITY

§60.36.License Eligibility After Revocation.

(a) Except as provided by subsection (b), Subchapter D, or other law, and pursuant to Texas Occupations Code §51.355, a person whose license is revoked by order of the commission or the executive director must wait one year from the date of revocation before applying for a new license.

(b) A person whose license has been revoked solely because of a failure to pay an administrative penalty or due to an outstanding insufficient funds fee may apply for a new license at any time if the person either:

(1) has paid the administrative penalty or the outstanding insufficient funds fee in full; or

(2) is paying the administrative penalty under a payment plan with the department and is in good standing with respect to that plan.

(c) For purposes of subsection (b), a person is in good standing with respect to a payment plan if, at the time of application, the person is current on the payment plan and has made timely payments on the plan for the preceding two months.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 16, 2022.

TRD-202203730

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 30, 2022

For further information, please call: (512) 475-4879

SUBCHAPTER D. CRIMINAL HISTORY AND LICENSE ELIGIBILITY

16 TAC §60.36

STATUTORY AUTHORITY

The proposed repeal is proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The proposed repeal is also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department's statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

In addition, the proposed repeal is proposed under the authority of other state laws that apply to state agencies. These laws include Texas Occupations Code, Chapters 55 and 108 (Subchapter B); Texas Government Code, Chapters 551, 552, 656 (Subchapter C), 661 (Subchapter A), 2001, 2005, 2008, 2009, and 2110; Civil Practice and Remedies Code, Chapter 154; and Family Code Chapters 231 and 232.

The statutory provisions affected by the proposed repeal are those set forth in Texas Occupations Code, Chapter 51, and the program statutes for all the Department programs: Agriculture Code, Chapter 301 (Weather Modification and Control); Business and Commerce Code, Chapter 607 (Motor Fuel Metering and Quality); Education Code, Chapter 1001 (Driver and Traffic Safety Education); Government Code, Chapters 171 (Court-Ordered Programs); and 469 (Elimination of Architectural Barriers); Health and Safety Code, Chapters 401, Subchapter M (Laser Hair Removal); 754 (Elevators, Escalators, and Related Equipment); and 755 (Boilers); Labor Code, Chapter 91 (Professional Employer Organizations); Occupations Code, Chapters 202 (Podiatrists); 203 (Midwives); 401 (Speech-Language Pathologists and Audiologists); 402 (Hearing Instrument Fitters and Dispensers); 403 (Dyslexia Practitioners and Therapists); 451 (Athletic Trainers); 455 (Massage Therapy); 506 (Behavioral Analysts); 605 (Orthotists and Prosthetists); 701 (Dietitians); 802 (Dog or Cat Breeders); 1151 (Property Tax Professionals); 1152 (Property Tax Consultants); 1202 (Industrialized Housing and Buildings); 1302 (Air Conditioning and Refrigeration Contractors); 1304 (Service Contract Providers and Administrators); 1305 (Electricians); 1601 (Barbers); 1602 (Cosmetologists); 1603 (Barbers and Cosmetologists); 1802 (Auctioneers); 1901 (Water Well Drillers); 1902 (Water Well Pump Installers): 1952 (Code Enforcement Officers); 1953 (Sanitarians); 1958 (Mold Assessors and Remediators); 2052 (Combative Sports); 2303 (Vehicle Storage Facilities); 2308 (Vehicle Towing and Booting); 2309 (Used Automotive Parts Recyclers); 2310 and 2312 (Motor Fuel Metering and Quality); and 2402 (Transportation Network Companies); and Transportation Code, Chapters 551A (Off-Highway Vehicle Training and Safety); and 662 (Motorcycle Operator Training and Safety).

In addition, the statutory provisions affected by the proposed repeal are those set forth in Texas Occupations Code, Chapters 53, 55, and 108 (Subchapter B); Texas Government Code, Chapters 411 (Subchapter F), 551, 552, 656 (Subchapter C), 661 (Subchapter A), 2001, 2005, 2008, 2009, and 2110; Civil Practice and Remedies Code, Chapter 154; and Family Code, Chapters 231 and 232. No other statutes, articles, or codes are affected by the proposed repeal.

§60.36.License Eligibility After Denial or Revocation.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 16, 2022.

TRD-202203732

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 30, 2022

For further information, please call: (512) 475-4879

16 TAC §§60.40 - 60.43

STATUTORY AUTHORITY

§60.40.License Eligibility for Persons with Criminal Convictions.

(a) Texas Occupations Code, Chapter 53 provides that the commission or executive director may suspend or revoke an existing license, disqualify a person from receiving a license, or deny a person the opportunity to take a licensing examination [~~be examined for a license~~] if the person has been convicted of an offense listed under §53.021(a) or has a deferred adjudication that qualifies as a conviction under §53.021(d). Any such action shall be made after consideration of the factors listed in Texas Occupations Code[,] §53.022 and §53.023 and the guidelines issued by the department under §53.025.

(b) Pursuant to Texas Occupations Code §51.355, a person whose license is revoked by order of the commission or the executive director based on the person's criminal history must wait one year from the date of revocation before applying for a new license.

(1) A person who is incarcerated because of a felony conviction is not eligible to obtain a license or renew a previously issued license under this chapter or any statute governing a program regulated by the department.

(2) A person whose license is revoked by operation of law pursuant to Texas Occupations Code §53.021(b) must wait until release from imprisonment before applying for a new license.

(3) This subsection does not apply to the issuance of a student permit under Texas Occupations Code, Chapter 1603, to a person enrolled in a school administered by the Windham School District or the Texas Department of Criminal Justice.

§60.41.License Eligibility for Persons with Deferred Adjudications or Other Criminal History [~~Non-Conviction Activities~~].

(a) Pursuant to Texas Occupations Code §51.356, the [~~The~~] commission may deny, suspend, [~~deny,~~] revoke, or refuse to renew a license, if the commission determines a deferred adjudication as specified under §51.356 makes the applicant or license holder [~~licensee~~] unfit for the license. In making this determination, the commission shall consider the factors set forth in Texas Occupations Code §53.022 and §53.023 and the guidelines issued by the department under §53.025.

(b) Pursuant to Texas Occupations Code §51.4012(a), the [~~The~~] commission may determine a person is not eligible [~~ineligible~~] for a license based on the person's criminal history [~~or other information that indicates lack of honesty, trustworthiness, or integrity to hold a license~~].

(c) Pursuant to Texas Occupations Code §51.355, a person whose license is revoked by order of the commission or the executive director based on the person's criminal history must wait one year from the date of revocation before applying for a new license.

§60.42.Criminal History Evaluation Letters.

(a) Pursuant to Texas Occupations Code Chapter 51, §51.4012 and Chapter 53, Subchapter D, a person may request the department issue a criminal history evaluation letter regarding the person's eligibility for a specific occupational license regulated by the department.

(b) A person may request the department issue an evaluation letter regarding whether the person may be eligible for a license if the person has a conviction or deferred adjudication for a felony or misdemeanor offense[~~, or if there is other information that indicates that the person may lack the honesty, trustworthiness or integrity to hold a license issued by the department~~].

(1) submit the request using a department-approved form; and

(2) pay the required fee of $10.

(d) A person must submit a separate evaluation letter request and fee for each specific occupational license in which the department will evaluate the person's eligibility.

(e) An evaluation request is not considered to be a complete request until all required information is received. No evaluation letter will be issued for an incomplete request. The entire process from receipt of the completed request to the issuance of an evaluation letter will not exceed 90 days.

(f) The department will issue an evaluation letter in response to each criminal history evaluation letter request. The evaluation letter will state the department's determination on each ground of potential ineligibility.

(g) The department is not bound by its determination if:

(1) the requestor fails to disclose known information that is relevant to the evaluation; or

(2) there is a change in the person's circumstances after the evaluation letter is issued.

(h) The department's determination is not a contested case under Texas Government Code, Chapter 2001, and the determination may not be appealed. The department's determination does not prohibit or prevent a person from enrolling or attending an educational program, taking a licensing examination, or applying for a license.

§60.43.License Denial or Revocation for Certain Health Professionals with a Criminal History.

(a) This section applies to a "health professional" as defined under Texas Occupations Code, Chapter 108, Subchapter B, and who is regulated by the commission and the department. This section applies to the licenses and permits issued under the following programs:

(1) hearing instrument fitters and dispensers;

(2) podiatrists; and

(3) speech-language pathologists and audiologists.

(b) The department shall deny an application for a license as a health care professional under this section, and shall revoke the license of a health care professional under this section, based on the person's criminal history and the requirements set out under Texas Occupations Code, Chapter 108, Subchapter B.

(c) A person whose application for licensure as a health care professional under this section has been denied, or whose license as a health care professional under this section has been revoked, pursuant to Texas Occupations Code, Chapter 108, Subchapter B, may reapply or seek reinstatement as provided by that subchapter.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 16, 2022.

TRD-202203727

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 30, 2022

For further information, please call: (512) 475-4879

SUBCHAPTER F. FEES

16 TAC §§60.80, 60.81, 60.83

STATUTORY AUTHORITY

§60.80.Program Fees.

(a) Most program fees set by the commission are published in the rule chapters for the specific programs regulated by the commission and the department. [~~Most fees set by the Commission are published in the rules relating to the statutes assigned to the Department.~~] These program fees may include fees for initial applications, renewals, duplicate licenses, examinations, and any other fees specific to a particular program.

(b) All program fees are non-refundable unless determined or stated otherwise.

§60.81.Charges for Providing Copies of Public Information.

In accordance with Texas Government Code §552.262, the commission adopts by reference the rules of the Office of the Attorney General as published in 1 TAC Part 3, Chapter 70, §§70.1 - 70.13 for determining charges for copies of public information under Texas Government Code, Chapter 552, Subchapter F. [~~In providing public information the Department adheres to the standards for cost of copies as adopted under 1 TAC Part 3, Chapter 70, §§70.1 - 70.12.~~]

§60.83.Late Renewal Fees.

(a) A person whose license has been expired for 90 days or less may renew the license by paying a late renewal fee equal to 1 and 1/2 times the renewal fee required for the license as prescribed in the program rules.

(b) A person whose license has been expired for more than 90 days but less than 18 months may renew the license by paying a late renewal fee equal to two times the renewal fee required for the license as prescribed in the program rules.

(c) A person whose license has been expired for more than 18 months but less than three years may request that the executive director approve the license renewal by:

(1) submitting information sufficient to explain the need [~~show just cause~~] for the late renewal; and

(2) paying to the department a renewal fee equal to two times the [~~normally required~~] renewal fee required for the license as prescribed in the program rules.

(d) A person paying a late renewal fee is not required to pay the late renewal fee in addition to the [~~late~~] renewal fee required for the license as prescribed in the program rules. The person is only required to pay the late renewal fee.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 16, 2022.

TRD-202203728

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 30, 2022

For further information, please call: (512) 475-4879

SUBCHAPTER G. RULEMAKING

16 TAC §§60.100 - 60.102

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, which authorizes the Texas Commission of Licensing and Regulation, the Department’s governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The proposed rules also are proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department’s statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued by the Department.

§60.100.Rulemaking.

The commission [~~Commission~~] and the department [~~Department~~] will follow the rulemaking procedures established in the Administrative Procedure [~~Procedures~~] Act (Texas Government Code, Chapter 2001), except when §60.101 of this subchapter is applicable.

§60.101.Negotiated Rulemaking.

(a) It is the commission’s [~~Commission's~~ ] policy to engage in negotiated rulemaking procedures under Texas Government Code, Chapter 2008, when appropriate. When the commission [~~Commission~~] finds that proposed rules are likely to be complex, or controversial, or to affect disparate groups, negotiated rulemaking may be proposed.

(b) When negotiated rulemaking is proposed, the commission [~~Commission~~] will appoint a convener to assist in determining whether it is advisable to proceed. The convener shall perform the duties and responsibilities contained in Texas Government Code, Chapter 2008.

(c) If the convener recommends proceeding with negotiated rulemaking and the commission [~~Commission~~] adopts the recommendation, the department [~~Department~~] shall initiate negotiated rulemaking according to the provisions of Texas Government Code, Chapter 2008.

§60.102.Petition for Adoption of Rules.

(a) In accordance with Texas Government Code §2001.021, any interested person may request that a rule be adopted, amended, or repealed by submitting a written petition for rulemaking to the department (rulemaking petition).

(b) An interested person, as defined by Texas Government Code §2001.021, must be:

(1) a resident of this state;

(2) a business entity located in this state;

(3) a governmental subdivision located in this state; or

(4) a public or private organization located in this state that is not a state agency.

(1) the person’s full name, mailing address, telephone number, and email address;

(2) a statement explaining how the person qualifies as an "interested person" as explained under subsection (b);

(3) a summary and explanation of the draft rule change;

(4) the rationale and justification for the draft rule change or the reasons why the person believes the rulemaking is necessary;

(5) a statement addressing whether there would be a cost to anyone impacted by the draft rule change, if the cost information is known or readily available;

(6) if proposing a new rule, the text of the new rule in the exact form that is desired to be adopted, with the new text underlined; and

(7) if proposing an amendment or repeal, the specific section and text of the rule the person wants to change, with deletions crossed through and additions underlined.

(d) A rulemaking petition will be denied if:

(1) it is submitted by a person who does not qualify as an "interested person"; or

(2) it does not contain the required information listed under subsection (c).

(e) The rulemaking petition must be submitted electronically on the department’s website at https://ga.tdlr.texas.gov:1443/form/gcerules (select the appropriate chapter name); by facsimile to (512) 475-3032; or by mail to Office of the General Counsel, ATTN: Rules Coordinator, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711.

(f) Not later than 60 days after the date of submission of a petition that complies with the requirements of this section, the executive director or the executive director’s designee shall review the petition and shall respond in writing either:

(1) denying the petition and stating the reasons for the denial; or

(2) informing the petitioner that the department will initiate a rulemaking proceeding under Texas Government Code, Chapter 2001.

(g) Repetitive Petitions. The executive director may deny a rulemaking petition if, within the preceding year, the executive director or the executive director’s designee has considered a previously submitted petition for the same rule.

~~[(a) Any interested person may request adoption of a rule(s) by submitting a letter of request to the department with a draft of the rule(s) attached. At a minimum the request should contain:]~~

~~[(1) items to be deleted bracketed or lined through;]~~

~~[(2) items added underlined; and]~~

~~[(3) the rationale for the requested rule change.]~~

~~[(b) For purposes of this section, the term "interested person" shall have the meaning given in Government Code, §2001.021.]~~

~~[(c) The department shall respond to a letter of request for adoption of a rule in accordance with Government Code, §2001.021.]~~

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 16, 2022.

TRD-202203729

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 30, 2022

For further information, please call: (512) 475-4879

SUBCHAPTER L. DEPARTMENT PERSONNEL

16 TAC §60.600, §60.601

STATUTORY AUTHORITY

§60.600.Department Employee Training and Education.

(a) Pursuant to Texas Government Code, Chapter 656, Subchapter C (the State Employees Training Act), department employees may be permitted or required to attend training or education programs if those programs relate to the employee's duties or prospective duties, materially aid effective administration of the department's functions, and serve an important public purpose.

(b) Training and Education Programs.

(1) The department may provide training or education for an employee if the employee's supervisor determines that the employee and the specific training or education program meet the eligibility criteria included in the department's personnel manual.

(2) Employees who receive training or education must utilize the training or education to prepare for technological and legal developments facing the department, or to increase professional capabilities and competence directly related to the work of the department.

(1) The department has established a Tuition Reimbursement Program as authorized under Texas Government Code §656.047(b). This program applies to a training or education program offered by an institution of higher education or private or independent institution of higher education as defined by Texas Education Code §61.003.

(2) The department may reimburse a full-time regular employee for tuition expenses if the employee meets the eligibility criteria and the employee obligations included in the department's personnel manual. The department may only pay the tuition expenses for a program course successfully completed by an employee at an accredited institution of higher education.

(3) An employee seeking tuition reimbursement must submit a request for reimbursement in accordance with the department's personnel manual. The executive director must authorize the tuition reimbursement payment before an employee may be reimbursed under Texas Government Code §656.047(b).

(d) Training with Extended Absence from Job Duties.

(1) If an employee receives training that will be paid for by the department, and during which the employee will not be performing the employee's regular duties for three months or more, the employee, prior to receiving the training, must enter into a written agreement with the department to comply with the requirements of Texas Government Code §656.103(a).

(2) An employee who fails or refuses to enter into such an agreement shall not be permitted to attend training lasting three or more months.

(3) In addition to the written agreement, an employee must meet the eligibility criteria and the employee obligations included in the department's personnel manual.

(e) The department shall pay the costs and expenses related to any approved training under this section in accordance with the Texas Government Code, Chapter 656, Subchapter C; the Comptroller's rules and regulations; and the department's policies relating to employee reimbursement included in the department's personnel manual.

§60.601.Department Sick Leave Pool.

(a) Pursuant to Texas Government Code, Chapter 661, Subchapter A, State Employee Sick Leave Pool, the department has established a sick leave pool to assist employees and their immediate families in dealing with catastrophic illness or injury that forces them to exhaust all accrued sick leave.

(b) The department's sick leave pool shall be administered by the executive director in accordance with Texas Government Code, Chapter 661, Subchapter A; the Texas Human Resources Statutes Inventory Manual and the Sick Leave Guide published by the Texas State Auditor's Office; and any other applicable laws and regulations.

(c) The executive director shall develop and prescribe policies and procedures for the operation of the sick leave pool and include those policies and procedures in the department's personnel manual.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 16, 2022.

TRD-202203731

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: October 30, 2022

For further information, please call: (512) 475-4879