Title 7, Part 1
On behalf of the Finance Commission of Texas (commission), the Office of Consumer Credit Commissioner files this notice of intention to review and consider for readoption, revision, or repeal, Texas Administrative Code, Title 7, Part 1, Chapter 7, concerning Texas Financial Education Endowment Fund.
This rule review will be conducted pursuant to Texas Government Code, §2001.039. The commission will accept written comments received on or before the 30th day after the date this notice is published in the Texas Register as to whether the reasons for adopting these rules continue to exist.
The Office of Consumer Credit Commissioner, which administers these rules, believes that the reasons for adopting the rules contained in this chapter continue to exist. Any questions or written comments pertaining to this notice of intention to review should be directed to Matthew Nance, General Counsel, Office of Consumer Credit Commissioner, 2601 North Lamar Boulevard, Austin, Texas 78705, or by email to rule.comments@occc.texas.gov. Any proposed changes to the rules as a result of the review will be published in the Proposed Rules Section of the Texas Register and will be open for an additional public comment period prior to final adoption or repeal by the commission.
TRD-202403260
Matthew Nance
General Counsel, Consumer Credit Commissioner
Finance Commission of Texas
Filed: July 22, 2024
Title 16, Part 3
Pursuant to Texas Government Code §2001.039, the Texas Alcoholic Beverage Commission (TABC) will review its rules in Texas Administrative Code Title 16, Chapter 45, Subchapters A through E (16 TAC §§45.1 - 45.51), relating to Marketing Practices: General Provisions, Enforcement, and Specific Requirements for Distilled Spirits, Malt Beverages, and Wine. TABC will consider whether the reasons for initially adopting these rules continue to exist and determine whether these rules should be repealed, readopted, or readopted with amendments.
TABC will consider any written comments on the rule review that are received by TABC no later than 5:00 p.m., central time, on September 1, 2024. Send your comments to rules@tabc.texas.gov or to the Office of General Counsel, Texas Alcoholic Beverage Commission, P.O. Box 13127, Austin, Texas 78711-3127.
TRD-202403337
Matthew Cherry
Senior Counsel
Texas Alcoholic Beverage Commission
Filed: July 24, 2024
State Office of Administrative Hearings
Title 1, Part 7
The Texas State Office of Administrative Hearings (SOAH) files this notice of re-adoption of the following chapters contained in Title 1, Part 7 of the Texas Administrative Code:
Chapter 155. Rules of Procedure
Chapter 156. Arbitration Procedures for Certain Enforcement Actions of the Department of Aging and Disability Services Regarding Assisted Living Facilities
Chapter 157. Temporary Administrative Law Judges
Chapter 160. General Administration
Chapter 161. Requests for Records
Chapter 163. Arbitration Procedures for Certain Enforcement Actions of the Texas Department of Aging and Disability Services Regarding Convalescent and Nursing Homes
Chapter 165. Rules of Procedure for Appraisal Review Board Appeals
Notice of SOAH's intention to review these rules was published in the May 24, 2024, issue of the Texas Register (49 Tex Reg 3817). SOAH did not receive any comments on the rule review. In accordance with Government Code §2001.039, SOAH has concluded that the reasons for the above-referenced rules continue to exist and that the re-adoption of these chapters is necessary and appropriate.
Relating to Chapter 159 concerning the Rules of Procedure for Administrative License Suspension Hearings, SOAH proposed amendments to Subchapters A, B, C, D, E, and F of Chapter 159 in the May 24, 2024, issue of the Texas Register (49 TexReg 3647). The adoption of those amendments is currently being addressed through a separate rulemaking process, and therefore the review and re-adoption of Chapter 159 as part of this rule review is not necessary at this time.
This concludes the review of Title 1, Part 7, Chapters 155, 156, 157, 160, 161, 163, and 165.
TRD-202403201
Shane Linkous
General Counsel
State Office of Administrative Hearings
Filed: July 19, 2024
Title 7, Part 8
The Finance Commission of Texas and the Texas Credit Union Commission (commissions) have completed the rule review of the following chapters in Texas Administrative Code, Title 7, Part 8, in their entirety: Chapter 151, concerning Home Equity Lending Procedures; Chapter 152, concerning Repair, Renovation, and New Construction on Homestead Property; and Chapter 153, concerning Home Equity Lending. The rule review was conducted under Texas Government Code, §2001.039.
Notice of the review of 7 TAC Chapters 151, 152, and 153 was published in the March 29, 2024, issue of the Texas Register (49 TexReg 2095). The commissions received no official comments in response to that notice. The commissions believe that the reasons for initially adopting the rules contained in these chapters continue to exist.
Before publishing notice of the review in the Texas Register, the Joint Financial Regulatory Agencies (Texas Department of Banking, Department of Savings and Mortgage Lending, Office of Consumer Credit Commissioner, and Texas Credit Union Department) issued an informal advance notice of the rule review to stakeholders. The agencies received three informal precomments in response to the advance notice. The agencies appreciate the thoughtful input provided by stakeholders.
In informal precomments, two industry attorneys recommended amendments to 7 TAC §153.8 (relating to Security of the Equity Loan: Section 50(a)(6)(H)) to provide guidance for factually complex situations involving multiple-unit homestead property, homestead ownership by unmarried cotenants, and multigenerational homestead ownership. At this time, it is unclear whether further rule text addressing these factually complex situations is appropriate in addition to the current text of §153.8. The agencies intend to monitor this issue to determine whether interpretation amendments may be appropriate in the future.
As a result of internal review by the agencies, the commissions have determined that certain revisions are appropriate and necessary in 7 TAC Chapter 151. Those proposed changes are published elsewhere in this issue of the Texas Register.
As a result of the rule review, the commissions find that the reasons for initially adopting the rules in 7 TAC Chapters 151, 152, and 153 continue to exist, and readopt these chapters in accordance with the requirements of Texas Government Code, §2001.039.
TRD-202403203
Matthew Nance
General Counsel, Consumer Credit Commissioner
Joint Financial Regulatory Agencies
Filed: July 19, 2024
Title 16, Part 3
The Texas Alcoholic Beverage Commission (TABC) has completed its review of its rules in Texas Administrative Code Title 16, Chapter 33, Subchapters C through G (16 TAC §§33.40 - 33.105), relating to Bonds, Application Review and Protests, Events at a Temporary Location, License and Permit Action, and Emergency Orders. This review was done pursuant to Texas Government Code §2001.039, which directs state agencies to review and consider for readoption each of their rules. The proposed rule review was published in the May 24, 2024, issue of the Texas Register (49 TexReg 3817).
SUMMARY OF COMMENTS. TABC received one comment from Griffith & Hughes, PLLC requesting amendments to 16 TAC §33.41 and §33.54, and the repeal of §33.59.
COMMENT: The commenter states that Rule 33.41(e)(3) and (e)(6)(C) contradict Texas Alcoholic Beverage Code §106.14 and are thus ultra vires.
AGENCY RESPONSE: The agency disagrees with the commenter. Rule 33.41 implements Alcoholic Beverage Code §11.11 and §61.13, which require certain permittees and licensees to file conduct surety bonds to ensure their conformity with alcoholic beverage laws. Alcoholic Beverage Code §106.14 is a "safe harbor" provision that generally shields a TABC-licensed employer from liability for certain violations committed by its employees if certain conditions are met.
For purposes of forfeiting a conduct surety bond, Rule 33.41(e)(3) and (e)(6)(C) allow violations committed by the employee, agent, or servant of a TABC-licensed employer to be attributed to the employer when the employer is otherwise shielded from liability under §106.14. The commenter claims that these rules contradict §106.14 by allowing an employee's improper actions to be held against the employer. That is incorrect. The rules are directly in line with Alcoholic Beverage Code §11.11(b)(2) and §61.13(b)(2), which provide for the forfeiture of a conduct surety bond if an employer's permit or license is revoked or on final adjudication that the permit or license holder violated a provision of this code, "regardless of whether the actions of an employee of a holder are not attributable to the holder under Section 106.14." With that statutory language, the legislature clearly intended to hold permit and license holders accountable for their employees' actions by making their conduct surety bond susceptible to forfeiture based on violations committed by those employees. As such, the rules are not ultra vires.
COMMENT: The commenter states that Rule 33.54 should be amended to require the agency to make a licensing determination within 90 days of the filing of an original license application and within 180 of the filing of a renewal license application. The commenter also states that the rule should impose deadlines by which a hearing on an application must be held.
AGENCY RESPONSE: The agency disagrees with the commenter's proposed amendment because it is unnecessary, contrary to the agency's public safety mission, and parts of it are outside the agency's purview.
Our data shows that the agency is processing the vast majority of applications in a timely fashion. Specifically, the average time to process an application is currently less than 26 days, which is down from 38 days in 2021 and 52 days in 2018. There are outliers, as the commenter notes, but the agency does not believe it is wise to self-impose an arbitrary, one size fits all deadline based on the most extreme examples. And for those applications that take longer to review, it is often because the applications are more complicated or require more in-depth investigation due to potential public safety concerns. As such, the agency believes the commenter's proposal is unnecessary and contrary to public safety.
Regarding the commenter's proposal to require hearings to be held within a certain number of days after an applicant requests a hearing or the agency finds reasonable grounds for an application protest, the Alcoholic Beverage Code requires that the State Office of Administrative Hearings (SOAH) conduct hearings on applications. And it is SOAH, not TABC, that sets the hearing schedules. See 1 TAC §155.401(b) (The SOAH judge "may issue orders regarding the date, time, and place for hearing, and orders affecting the scope of the proceeding."). It would be inappropriate for TABC to attempt to mandate hearing timelines for SOAH, which would only be binding if SOAH adopted those timelines by reference. See Tex. Gov't Code § 2003.050(b) ("Notwithstanding other law, the procedural rules of the state agency on behalf of which the hearing is conducted govern procedural matters that relate to the hearing only to the extent that the chief administrative law judge's rules adopt the agency's procedural rules by reference.").
COMMENT: The commenter states that Rule 33.59 should be repealed because it contradicts Texas Alcoholic Beverage Code §11.43 and is thus ultra vires. The commenter also believes the rule is unnecessary.
AGENCY RESPONSE: The agency disagrees with the commenter. Rule 33.59, which was adopted pursuant to authority in Texas Alcoholic Beverage Code §11.43(j), "lay[s] out procedures when a valid protest is referred to SOAH for a hearing while commission review and investigation related to the application is ongoing, and the executive director subsequently identifies a reason or reasons to recommend denial of the application." 45 TexReg 5574 (Rule Proposal). In that circumstance, the agency will request that SOAH remand the application to the agency to be handled in accordance with Alcoholic Beverage Code §11.43(g).
The commenter claims that the agency's authority to recommend an application be denied ceases upon referral of an application protest to SOAH. The commenter fails to cite to any supporting authority for his assertion, and the agency is not aware of any. The commenter also claims that section 11.43 "does not give the Commission legal authority to claw back a referral from SOAH." But the commenter mischaracterizes the rule; it provides that the agency shall request remand - a request that SOAH is free to grant or deny. See Tex. Gov't Code §2001.058(b) (SOAH administrative law judge is not subject to referring agency's supervision); 1 TAC ch.155 (SOAH Rules of Procedure). To the extent the commenter questions SOAH's authority to remand cases, that issue is beyond the scope of this rule review, but we note that SOAH often dismisses contested cases without prejudice, which effectively remands the case back to the referring agency for action. See 1 TAC §155.503 (authorizing an ALJ to dismiss a case for various reasons). In these instances, the ALJ's dismissal is merely the procedural vehicle used to effectuate the requested remand. Rule 33.59 provides an avenue to avoid any unnecessary proceedings at SOAH if an applicant elects not to request a hearing under Alcoholic Beverage Code §11.43(g) after receiving notice of the agency's denial recommendation based on grounds separate from those raised in a protest. An application's denial at the agency level is a proceeding on the application and to move forward with a SOAH hearing on the protested grounds (absent a hearing request by the applicant) would not only be unnecessarily duplicative but also moot should the Commission deny the application. Additionally, it is well within the agency's authority to promulgate a rule requiring the agency, as a jurisdictional party, to make a request to an ALJ and such a requirement fits within the legislature's directive to the agency in Alcoholic Beverage Code §11.43(j) to adopt rules implementing the application review and protest process. Therefore, TABC does not agree that Rule 33.59 is ultra vires.
The commenter also claims the rule is unnecessary "because the Commission can recommend a denial on the front end, and if further investigation finds that there is no basis for the denial, the Commission can always withdraw their denial recommendation obviating any need for remand." The commenter proposes that the agency automatically recommend denial of all applications on which a protest is received to only subsequently rescind the denial in those instances where the agency does not find grounds to deny. Not only is this impractical, but such a process would result in the needless expenditure of agency resources that could instead be spent on processing additional applications. Moreover, the commenter's proposed course of action does not address the issue that the rule was designed to address, which are those circumstances where the agency has not identified a basis for denial at the time an application protest is referred to SOAH as required by Alcoholic Beverage Code §11.43(f). Thus, TABC does not agree that the rule is unnecessary.
READOPTION OF RULES. After review, TABC finds that the reasons for adopting 16 TAC §§33.40 - 33.105 continue to exist. TABC readopts those rules. However, TABC also identified provisions in the reviewed rules that may warrant further amendment. TABC will formally propose any amendments consistent with the Texas Administrative Procedure Act, Texas Government Code Chapter 2001.
TRD-202403336
Matthew Cherry
Senior Counsel
Texas Alcoholic Beverage Commission
Filed: July 24, 2024
Title 25, Part 1
The Texas Health and Human Services Commission (HHSC), on behalf of the Texas Department of State Health Services (DSHS), adopts the review of the chapter below in Title 25, Part 1, of the Texas Administrative Code (TAC):
Chapter 265, General Sanitation
Notice of the review of this chapter was published in the May 24, 2024, issue of the Texas Register (49 TexReg 3819). HHSC received no comments concerning this chapter.
HHSC and DSHS have reviewed Chapter 265 in accordance with Texas Government Code §2001.039, which requires state agencies to assess, every four years, whether the initial reasons for adopting a rule continue to exist.
The agencies determined that the original reasons for adopting all rules in the chapter continue to exist and readopts Chapter 265. Any amendments, if applicable, to Chapter 265 identified by HHSC and DSHS in the rule review will be proposed in a future issue of the Texas Register.
This concludes HHSC's and DSHS' review of 25 TAC Chapter 265 as required by the Texas Government Code §2001.039.
TRD-202403216
Jessica Miller
Director, Rules Coordination Office
Department of State Health Services
Filed: July 22, 2024
The Texas Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 25, Part 1, of the Texas Administrative Code (TAC):
Chapter 405, Patient Care--Mental Health Services
Notice of the review of this chapter was published in the June 7, 2024, issue of the Texas Register (49 TexReg 4066). HHSC received no comments concerning this chapter.
HHSC has reviewed Chapter 405 in accordance with Texas Government Code §2001.039, which requires state agencies to assess, every four years, whether the initial reasons for adopting a rule continue to exist.
The agency determined that the original reasons for adopting all rules in the chapter continue to exist and readopts Chapter 405. Any amendments, if applicable, to Chapter 405 identified by HHSC in the rule review will be proposed in a future issue of the Texas Register.
This concludes HHSC's review of 25 TAC Chapter 405 as required by the Texas Government Code §2001.039.
TRD-202403262
Jessica Miller
Director, Rules Coordination Office
Department of State Health Services
Filed: July 23, 2024
The Texas Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 25, Part 1, of the Texas Administrative Code (TAC):
Chapter 411, State Mental Health Authority Responsibilities
Notice of the review of this chapter was published in the June 7, 2024, issue of the Texas Register (49 TexReg 4066). HHSC received no comments concerning this chapter.
HHSC has reviewed Chapter 411 in accordance with Texas Government Code §2001.039, which requires state agencies to assess, every four years, whether the initial reasons for adopting a rule continue to exist.
The agency determined that the original reasons for adopting rules in the chapter continue to exist and readopts Chapter 411 except for:
§411.61 Memorandum of Understanding Concerning Capacity Assessment for Self-Care and Financial Management; and
§411.64 Memorandum of Understanding (MOU) on Relocation Pilot Program.
The identified repeals and any amendments, if applicable, to Chapter 411 identified by HHSC in the rule review will be proposed in a future issue of the Texas Register.
This concludes HHSC's review of 25 TAC Chapter 411 as required by the Texas Government Code §2001.039.
TRD-202403264
Jessica Miller
Director, Rules Coordination Office
Department of State Health Services
Filed: July 23, 2024
The Texas Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 25, Part 1, of the Texas Administrative Code (TAC):
Chapter 414, Rights and Protections of Persons Receiving Mental Health Services
Notice of the review of this chapter was published in the June 7, 2024, issue of the Texas Register (49 TexReg 4066). HHSC received no comments concerning this chapter.
HHSC has reviewed Chapter 414 in accordance with Texas Government Code §2001.039, which requires state agencies to assess, every four years, whether the initial reasons for adopting a rule continue to exist.
The agency determined that the original reasons for adopting rules in the chapter continue to exist and readopts Chapter 414 except for:
§414.414, References;
§414.415, Distribution;
§414.508, References;
§414.509, Distribution;
§414.562, Exhibits;
§414.563, References; and
§414.564, Distribution.
The identified repeals and any amendments, if applicable, to Chapter 414 identified by HHSC in the rule review will be proposed in a future issue of the Texas Register.
This concludes HHSC's review of 25 TAC Chapter 414 as required by the Texas Government Code §2001.039.
TRD-202403263
Jessica Miller
Director, Rules Coordination Office
Department of State Health Services
Filed: July 23, 2024
Title 25, Part 9
The Texas Diabetes Council adopts the review of the chapter below in Title 25, Part 9, of the Texas Administrative Code (TAC):
Chapter 651, Conduct of Council Meetings
Notice of the review of this chapter was published in the May 10, 2024, issue of the Texas Register (49 TexReg 3379). DSHS received no comments concerning this chapter.
DSHS has reviewed Chapter 651 in accordance with Texas Government Code §2001.039, which requires state agencies to assess, every four years, whether the initial reasons for adopting a rule continue to exist.
The agency determined that the original reasons for adopting all rules in the chapter continue to exist and readopts Chapter 651. Any amendments, if applicable, to Chapter 651 identified by DSHS in the rule review will be proposed in a future issue of the Texas Register.
TRD-202403206
Jessica Miller
Director, Rules Coordination Office
Texas Diabetes Council
Filed: July 22, 2024
Title 26, Part 1
The Texas Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 26, Part 1, of the Texas Administrative Code (TAC):
Chapter 261, Intermediate Care Facilities for Individuals with An Intellectual Disability or Related Conditions (ICF/IID) Program--Contracting
Notice of the review of this chapter was published in the April 5, 2024, issue of the Texas Register (49 TexReg 2204). HHSC received no comments concerning this chapter.
HHSC has reviewed Chapter 261 in accordance with Texas Government Code §2001.039, which requires state agencies to assess, every four years, whether the initial reasons for adopting a rule continue to exist.
The agency determined that the original reasons for adopting all rules in the chapter continue to exist and readopts Chapter 261. Any amendments, if applicable, to Chapter 261 identified by HHSC in the rule review will be proposed in a future issue of the Texas Register.
This concludes HHSC's review of 26 TAC Chapter 261 as required by the Texas Government Code §2001.039.
TRD-202403215
Jessica Miller
Director, Rules Coordination Office
Texas Health and Human Services Commission
Filed: July 22, 2024
The Texas Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 26, Part 1, of the Texas Administrative Code (TAC):
Chapter 271, Community Care for Aged and Disabled
Notice of the review of this chapter was published in the May 24, 2024, issue of the Texas Register (49 TexReg 3819). HHSC received no comments concerning this chapter.
HHSC has reviewed Chapter 271 in accordance with Texas Government Code §2001.039, which requires state agencies to assess, every four years, whether the initial reasons for adopting a rule continue to exist.
The agency determined that the original reasons for adopting all rules in the chapter continue to exist and readopts Chapter 271. Any amendments, if applicable, to Chapter 271 identified by HHSC in the rule review will be proposed in a future issue of the Texas Register.
This concludes HHSC's review of 26 TAC Chapter 271 as required by the Texas Government Code §2001.039.
TRD-202403269
Jessica Miller
Director, Rules Coordination Office
Texas Health and Human Services Commission
Filed: July 23, 2024
The Texas Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 26, Part 1, of the Texas Administrative Code (TAC):
Chapter 300, State Authority Responsibilities
Notice of the review of this chapter was published in the June 14, 2024, issue of the Texas Register (49 TexReg 4439). HHSC received no comments concerning this chapter.
HHSC has reviewed Chapter 300 in accordance with Texas Government Code §2001.039, which requires state agencies to assess, every four years, whether the initial reasons for adopting a rule continue to exist.
The agency determined that the original reasons for adopting all rules in the chapter continue to exist and readopts Chapter 300. Any amendments, if applicable, to Chapter 300 identified by HHSC in the rule review will be proposed in a future issue of the Texas Register.
This concludes HHSC's review of 26 TAC Chapter 300 as required by the Texas Government Code §2001.039.
TRD-202403266
Jessica Miller
Director, Rules Coordination Office
Texas Health and Human Services Commission
Filed: July 23, 2024
The Texas Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 26, Part 1, of the Texas Administrative Code (TAC):
Chapter 306, Behavioral Health Delivery System
Notice of the review of this chapter was published in the June 7, 2024, issue of the Texas Register (49 TexReg 4067). HHSC received no comments concerning this chapter.
HHSC has reviewed Chapter 306 in accordance with Texas Government Code §2001.039, which requires state agencies to assess, every four years, whether the initial reasons for adopting a rule continue to exist.
The agency determined that the original reasons for adopting rules in the chapter continue to exist and readopts Chapter 306 except for:
§306.281, Guidelines; and
§306.333, Guidelines.
The identified repeals and any amendments, if applicable, to Chapter 306 identified by HHSC in the rule review will be proposed in a future issue of the Texas Register.
This concludes HHSC's review of 26 TAC Chapter 306 as required by the Texas Government Code §2001.039.
TRD-202403265
Jessica Miller
Director, Rules Coordination Office
Texas Health and Human Services Commission
Filed: July 23, 2024
The Texas Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 26, Part 1, of the Texas Administrative Code (TAC):
Chapter 307, Behavioral Health Programs
Notice of the review of this chapter was published in the June 7, 2024, issue of the Texas Register (49 TexReg 4067). HHSC received no comments concerning this chapter.
HHSC has reviewed Chapter 307 in accordance with Texas Government Code §2001.039, which requires state agencies to assess, every four years, whether the initial reasons for adopting a rule continue to exist.
The agency determined that the original reasons for adopting all rules in the chapter continue to exist and readopts Chapter 307. Any amendments, if applicable, to Chapter 307 identified by HHSC in the rule review will be proposed in a future issue of the Texas Register.
This concludes HHSC's review of 26 TAC Chapter 307 as required by the Texas Government Code §2001.039.
TRD-202403267
Jessica Miller
Director, Rules Coordination Office
Texas Health and Human Services Commission
Filed: July 23, 2024
The Texas Health and Human Services Commission (HHSC) adopts the review of the chapter below in Title 26, Part 1, of the Texas Administrative Code (TAC):
Chapter 354, Hemophilia Assistance Program
Notice of the review of this chapter was published in the June 7, 2024, issue of the Texas Register (49 TexReg 4067). HHSC received no comments concerning this chapter.
HHSC has reviewed Chapter 354 in accordance with Texas Government Code §2001.039, which requires state agencies to assess, every four years, whether the initial reasons for adopting a rule continue to exist.
The agency determined that the original reasons for adopting all rules in the chapter continue to exist and readopts Chapter 354. Any amendments, if applicable, to Chapter 354 identified by HHSC in the rule review will be proposed in a future issue of the Texas Register.
This concludes HHSC's review of 26 TAC Chapter 354 as required by the Texas Government Code §2001.039.
TRD-202403205
Jessica Miller
Director, Rules Coordination Office
Texas Health and Human Services Commission
Filed: July 22, 2024