Proposed Rules Title 16

TITLE 16. ECONOMIC REGULATION

SUBCHAPTER F. LICENSING PERSONS WITH CRIMINAL BACKGROUNDS

The Texas Racing Commission (TXRC) proposes to amend selected language in Texas Administrative Code, Title 16, Part 8, Chapter 303, Subchapter F, Licensing Persons with Criminal Backgrounds, §303.201. General Authority, concerning factors that relate to the person's present fitness to perform the duties and responsibilities. The purpose of this rule amendment is to align the Texas Rules of Racing with legislative changes made to the Texas Racing Act during the 88th Legislative Session, specifically Texas Occupations Code §2025.

AGENCY ANALYSIS

A. GOVERNMENT GROWTH IMPACT STATEMENT REQUIRED BY TEXAS GOVERNMENT CODE §2001.022.

Amy F. Cook, Executive Director, has determined that the proposed rules will not create or eliminate a government program; create new or eliminates existing employee positions; require an increase or decrease in future legislative appropriations to the agency; require an increase or decrease in fees paid to the agency; create a new regulation, expand an existing regulation, limit an existing regulation, or repeal an existing regulation; increase or decrease the number of individuals subject to the rules applicability; and will not positively or adversely affects the state's economy. The rule will not repeal an existing regulation, rather it will be amended to conform with Chapter 53, Texas Occupations Code which was incorporated into the Texas Racing Act in the 88th Legislative Session.

B. ECONOMIC IMPACT STATEMENT REQUIRED BY TEXAS GOVERNMENT CODE §2006.002.

Amy F. Cook, Executive Director, has determined that the proposed rule amendments will have no adverse economic effect on small businesses, micro-businesses, or rural communities, therefore preparation of an Economic Impact Statement as detailed under Texas Government Code § 2006.002, is not required.

C. REGULATORY FLEXIBILITY ANALYSIS REQUIRED BY TEXAS GOVERNMENT CODE §2006.002.

Amy F. Cook, Executive Director, has determined that the proposed rule amendments will have no adverse economic effect on small businesses, micro-businesses, or rural communities, therefore preparation of a Regulatory Flexibility Analysis as detailed under Texas Government Code § 2006.002, is not required.

D. TAKINGS IMPACT ASSESSMENT REQUIRED BY TEXAS GOVERNMENT CODE §2007.043.

Amy F. Cook, Executive Director, has determined that no private real property interests are affected by the proposed rule amendments, and the proposed rule amendments 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 rule amendments do not constitute a taking or require a takings impact assessment under Texas Government Code § 2007.043.

E. LOCAL EMPLOYMENT IMPACT STATEMENT REQUIRED BY TEXAS GOVERNMENT CODE §2001.024(A)(6).

Amy F. Cook, Executive Director, has determined that the proposed rule repeal and rule amendments are not expected to have any fiscal implications for state or local government as outlined in Texas Government Code §2001.024(A)(6).

F. COST-BENEFIT ANALYSIS REQUIRED BY TEXAS GOVERNMENT CODE §2001.024(A)(5).

Amy F. Cook, Executive Director has determined that the proposed rule amendments are expected to further align the administration of the occupational licensing program with recent statutory changes to the Texas Occupations Code that incorporate Chapter 53 in the agency licensing program.

G. FISCAL NOTE ANALYSIS REQUIRED BY TEXAS GOVERNMENT CODE §2001.024(A)(4).

Amy F. Cook, Executive Director has determined that no significant fiscal impact is associated with the proposed rule change.

Comments on the proposal may be submitted to the Texas Racing Commission Executive Director, Amy F. Cook, via webpage comment form at https://www.txrc.texas.gov/texas-rules-of-racing or through the agency customer service desk at customer.service@txrc.texas.gov, or by calling the customer service phone number at (512) 833-6699. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

H. STATUTORY AUTHORITY.

The amendments are proposed under Texas Occupations Code §2025.001(a-1).

I. CROSS REFERENCE TO STATUTE. Texas Occupations Code §2025.001(a-1).

§303.201.General Authority.

(a) In accordance with state law, the commission may revoke, suspend, or deny a license [~~or the stewards or racing judges may suspend or deny a license to a person~~] because of the person's conviction of a felony or misdemeanor if the offense directly relates to the person's present fitness to perform the duties and responsibilities associated with the license.

(b) In determining whether ~~[or not~~] an offense directly relates to a person's present fitness to perform the duties and responsibilities associated with the license, the commission [~~or stewards or racing judges~~] shall consider the relationship between the offense and the occupational [~~particular~~] license applied for and the following factors:

(1) the extent and nature of the person's past criminal activity;

(2) the age of the person at the time of the commission of the crime;

(3) the amount of time that has elapsed since the person's last criminal activity;

(4) the conduct and work activity of the person prior to and following the criminal activity;

(5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release; and

(6) other evidence presented by the person of the person's present fitness, including letters of recommendation from:

(A) prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the person;

(B) the sheriff or chief of police in the community where the person resides; or

(c) The executive director [~~secretary~~] shall [~~may~~] develop and publish guidelines relating to the administration of the of occupational licensing program. [~~regarding the factors listed in subsection (b) of this section and how the factors relate to the offenses listed in §303.202 of this title (relating to General Provisions.)~~]

(d) On learning of the felony conviction, felony probation revocation, revocation of parole, or revocation of mandatory supervision of a licensee, the executive director or designee [~~commission~~ ] shall determine whether a license may be subject to suspension or revocation [~~revoke the licensee's license~~].

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 17, 2024.

TRD-202404463

Amy F. Cook

Executive Director

Texas Racing Commission

Earliest possible date of adoption: November 3, 2024

For further information, please call: (512) 833-6699

16 TAC §303.202

The Texas Racing Commission (TXRC) proposes amendments to Title 16, Part 8, Chapter 303, Subchapter F, Licensing Persons with Criminal Background, Rule §303.202. Guidelines, concerning the occupational licensing guidelines. The purpose of these amendments is to clarify the responsibilities of the executive director and align the administration of the occupational licensing program with current state law. The proposed amendments will allow the agency to conform with the provisions of Texas Occupations Code §2025.251-262.

A. DRAFT GOVERNMENT GROWTH IMPACT STATEMENT REQUIRED BY TEXAS GOVERNMENT CODE §2001.022.

B. ECONOMIC IMPACT STATEMENT REQUIRED BY TEXAS GOVERNMENT CODE §2006.002.

Amy F. Cook, Executive Director, has determined that the proposed amendments will have no adverse economic effect on small businesses, micro-businesses, or rural communities, therefore preparation of an Economic Impact Statement as detailed under Texas Government Code § 2006.002, is not required.

C. REGULATORY FLEXIBILITY ANALYSIS REQUIRED BY TEXAS GOVERNMENT CODE §2006.002.

Amy F. Cook, Executive Director, has determined that the proposed amendments will have no adverse economic effect on small businesses, micro-businesses, or rural communities, therefore preparation of a Regulatory Flexibility Analysis as detailed under Texas Government Code §2006.002, is not required.

D. TAKINGS IMPACT ASSESSMENT REQUIRED BY TEXAS GOVERNMENT CODE §2007.043.

Amy F. Cook, Executive Director, has determined that no private real property interests are affected by the proposed amendments, and the proposed amendments 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 rule amendments do not constitute a taking or require a takings impact assessment under Texas Government Code §2007.043.

E. LOCAL EMPLOYMENT IMPACT STATEMENT REQUIRED BY TEXAS GOVERNMENT CODE §2001.024(A)(6).

Amy F. Cook, Executive Director, has determined that the proposed amendments are not expected to have any fiscal implications for state or local government as outlined in Texas Government Code §2001.024(A)(6).

F. COST-BENEFIT ANALYSIS REQUIRED BY TEXAS GOVERNMENT CODE §2001.024(A)(5).

Amy F. Cook, Executive Director has determined that the proposed amendments are expected to reduce the overall costs of the licensing process by clarifying the factors considered for issuance of an occupational license.

G. FISCAL NOTE ANALYSIS REQUIRED BY TEXAS GOVERNMENT CODE § 2001.024(A)(4).

Amy F. Cook, Executive Director has determined that no significant fiscal impact is associated with the proposed amendments.

H. STATUTORY AUTHORITY.

The amendments are proposed under Texas Occupations Code §2025.251-262.

I. CROSS REFERENCE TO STATUTE.

Texas Occupations Code §2025.251-262.

§303.202.Guidelines.

[~~(a)~~] In accordance with state law, the commission has delegated the administration of the occupational licensing program to the executive director who shall develop guidelines [~~developed guidelines~~] relating to the suspension, revocation, or denial of occupational licenses based on criminal background. [~~The offenses that the commission has determined are directly related to the occupational licenses issued by the commission are:~~]

~~[(1) an offense for which fraud, dishonesty, or deceit is an essential element;]~~

~~[(2) an offense relating to racing, pari-mutuel wagering, gambling, or prostitution;]~~

~~[(3) a felony offense of assault, such as those described by Penal Code, Chapter 22;]~~

~~[(4) a criminal homicide offense, such as those described by Penal Code, Chapter 19;]~~

~~[(5) a burglary offense, such as those described by Penal Code, Chapter 30;]~~

~~[(6) a robbery offense, such as those described by Penal Code, Chapter 29;]~~

~~[(7) cruelty to animals;]~~

~~[(8) a theft offense, such as those described by Penal Code, Chapter 31;]~~

~~[(9) an offense relating to the possession, manufacture, or delivery of a controlled substance, a dangerous drug, or an abusable glue or aerosol paint;]~~

~~[(10) arson; and]~~

~~[(11) a felony offense of driving while intoxicated.]~~

~~[(b) The commission has considered the following factors in determining whether or not a particular offense directly relates to a particular occupational license:]~~

~~[(1) the nature and seriousness of the crime;]~~

~~[(2) the relationship of the crime to the purposes for requiring a license to engage in the occupation;]~~

~~[(3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and]~~

~~[(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.]~~

[(c) Based on the factors described in subsection (b) of this section, the commission has determined that the offenses described in subsection (a) of this section are directly related to the following occupational licenses. (An "X" on the chart means the offense directly relates to the license.)]

~~[Figure: 16 TAC §303.202(c)]~~

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 17, 2024.

TRD-202404464

Amy F. Cook

Executive Director

Texas Racing Commission

Earliest possible date of adoption: November 3, 2024

For further information, please call: (512) 833-6699

CHAPTER 311. OTHER LICENSES

SUBCHAPTER A. LICENSING PROVISIONS

DIVISION 1. OCCUPATIONAL LICENSES

16 TAC §311.4

The Texas Racing Commission (TXRC) proposes amendments to Texas Administrative Code, Title 16, Part 8, Chapter 311, Subchapter A, Division 1, Occupational Licenses, §311.4. Occupational License Restrictions. The purpose of these amendments is to align the Texas Rules of Racing with changes in the Texas Racing Act made during the 88th Legislative Session, specifically, Texas Occupations Code §2025.001(a-1).

AGENCY ANALYSIS

A. GOVERNMENT GROWTH IMPACT STATEMENT REQUIRED BY TEXAS GOVERNMENT CODE §2001.022.

Amy F. Cook, Executive Director, has determined that the proposed rules will not create or eliminate a government program; create new or eliminate existing employee positions; require an increase or decrease in future legislative appropriations to the agency; require an increase or decrease in fees paid to the agency; create a new regulation, expand an existing regulation, limit an existing regulation, or repeal an existing regulation; increase or decrease the number of individuals subject to the rule's applicability; and will not positively or adversely affects the state's economy. The rule will not repeal an existing regulation, rather it will be amended to conform with Chapter 53, Texas Occupations Code which was incorporated into the Texas Racing Act in the 88th Legislative Session.

B. ECONOMIC IMPACT STATEMENT REQUIRED BY TEXAS GOVERNMENT CODE §2006.002.

C. REGULATORY FLEXIBILITY ANALYSIS REQUIRED BY TEXAS GOVERNMENT CODE §2006.002.

Amy F. Cook, Executive Director, has determined that the proposed rule amendments will have no adverse economic effect on small businesses, micro-businesses, or rural communities; therefore, preparation of a Regulatory Flexibility Analysis as detailed under Texas Government Code §2006.002, is not required.

D. TAKINGS IMPACT ASSESSMENT REQUIRED BY TEXAS GOVERNMENT CODE §2007.043.

E. LOCAL EMPLOYMENT IMPACT STATEMENT REQUIRED BY TEXAS GOVERNMENT CODE §2001.024(A)(6).

Amy F. Cook, Executive Director, has determined that the proposed rule amendments are not expected to have any fiscal implications for state or local government as outlined in Texas Government Code §2001.024(A)(6).

F. COST-BENEFIT ANALYSIS REQUIRED BY TEXAS GOVERNMENT CODE §2001.024(A)(5).

Amy F. Cook, Executive Director has determined that the proposed rule amendments are expected to reduce the overall costs of the licensing process aligning the administration of the licensing program by the Executive Director with the current version of the Texas Racing Act.

G. FISCAL NOTE ANALYSIS REQUIRED BY TEXAS GOVERNMENT CODE §2001.024(A)(4).

Amy F. Cook, Executive Director has determined that no significant fiscal impact is associated with the proposed rule change.

STATUTORY AUTHORITY.

The amendments are proposed under Texas Occupations Code §2025.001 (a-1).

CROSS REFERENCE TO STATUTE.

No other statute, code, or article is affected by the proposed amendments.

§311.4.Occupational License Restrictions.

(a) Non-Transferable. Except as otherwise provided by this section, a license issued by the Executive Director is personal to the licensee and is not transferable.

~~[(1) Except as otherwise provided by this section, a license issued by the Commission is personal to the licensee and is not transferable.]~~

[(2) If the death of a licensee creates an undue hardship or results in a technical violation of the Act or a Rule, on application of a person who wishes to operate or work under the license, the Commission may issue a temporary license to the person for a period specified by the Commission not to exceed one year.]

(b) Education. To be eligible to receive a license to participate in racing with pari-mutuel wagering, an individual who is under 18 years of age must present to the Commission proof that the individual:

(1) has graduated from high school or received an equivalent degree; or

(2) is currently enrolled in high school or equivalent classes.

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 17, 2024.

TRD-202404466

Amy F. Cook

Executive Director

Texas Racing Commission

Earliest possible date of adoption: November 3, 2024

For further information, please call: (512) 833-6699

CHAPTER 319. VETERINARY PRACTICES AND DRUG TESTING

SUBCHAPTER D. DRUG TESTING

DIVISION 3. PROVISIONS FOR HORSES

16 TAC §319.362

The Texas Racing Commission (TXRC) proposes rule amendments in Texas Administrative Code, Title 16, Part 8, Chapter 319, Subchapter D, Provisions for Horses, §319.362. Split Specimen. The purpose of this rule amendment is to change the procedures for drug testing of horses to enable the storage of split samples at a laboratory along with testing both samples at that laboratory.

AGENCY ANALYSIS

A. DRAFT GOVERNMENT GROWTH IMPACT STATEMENT REQUIRED BY TEXAS GOVERNMENT CODE §2001.022.

Amy F. Cook, Executive Director, has determined that the proposed rule change will not affect the local economy, so the Commission is not required to prepare a local employment impact statement under Government Code §2001.022. The rule will not create or eliminate a government program; will not require the creation of new employee positions or the elimination of existing employee positions; will not require an increase or decrease in future legislative appropriations to the OOG; will not require an increase or decrease in fees paid to the OOG; will not create new regulations; will not increase or decrease the number of individuals subject to the applicability of the rules; and will not positively or adversely affect the Texas economy.

B. ECONOMIC IMPACT STATEMENT REQUIRED BY TEXAS GOVERNMENT CODE §2006.002.

C. REGULATORY FLEXIBILITY ANALYSIS REQUIRED BY TEXAS GOVERNMENT CODE §2006.002.

Amy F. Cook, Executive Director, has determined that the proposed rule amendments will have no adverse economic effect on small businesses, micro-businesses, or rural communities, therefore preparation of a Regulatory Flexibility Analysis as detailed under Texas Government Code §2006.002, is not required.

D. TAKINGS IMPACT ASSESSMENT REQUIRED BY TEXAS GOVERNMENT CODE §2007.043.

E. LOCAL EMPLOYMENT IMPACT STATEMENT REQUIRED BY TEXAS GOVERNMENT CODE §2001.024(A)(6).

F. COST-BENEFIT ANALYSIS REQUIRED BY TEXAS GOVERNMENT CODE §2001.024(A)(5).

Amy F. Cook, Executive Director has determined that the proposed rule amendments are expected to improve the positive economic impact, health, and safety of licensed horse racing in Texas by reducing the impact of unlicensed racing.

G. FISCAL NOTE ANALYSIS REQUIRED BY TEXAS GOVERNMENT CODE §2001.024(A)(4).

Amy F. Cook, Executive Director has determined that no significant fiscal impact is associated with the proposed rule change.

H. STATUTORY AUTHORITY: The amendments are proposed under Texas Occupations Code §§2034.002; 2034.005.

I. CROSS REFERENCE TO STATUTE. Texas Occupations Code §§2034.002; 2034.005.

§319.362.Split Specimen.

(a) Before sending a specimen from a horse to a testing laboratory, the commission veterinarian shall determine whether the specimen is of sufficient quantity to be split. If there is sufficient quantity, the commission veterinarian or the commission veterinarian's designee shall divide the specimen into two parts and both parts will be shipped to the testing laboratory for testing and storage for future testing, if applicable. If the specimen is of insufficient quantity to be split, the commission veterinarian may require the horse to be detained until an adequate amount of urine can be obtained. If the commission veterinarian ultimately determines the quantity of the specimen obtained is insufficient to be split, the commission veterinarian shall certify that fact in writing and submit the entire specimen to the laboratory for testing.

[(b) The commission veterinarian or commission veterinarian's designee shall retain custody of the portion of the specimen that is not sent to the laboratory. The veterinarian or designee shall store the retained part in a manner that ensures the integrity of the specimen.]

(b) [~~(c)~~] An owner or trainer of a horse which has received a positive result on a drug test may request, in writing, that the split of the specimen for the primary sample with the positive result, be submitted for testing by a different technician at a Commission approved testing laboratory. [~~retained serum or urine, whichever provided the positive result, be submitted for testing to a Commission approved and listed laboratory that is acceptable to the owner or trainer.~~] The owner or trainer must notify the executive director [~~secretary~~] of the request not later than 48 hours after notice of the positive result. Failure to request the split within the prescribed time period will be deemed a waiver of the right to the split specimen.

[(d) If the retained part of a specimen is sent for testing, the commission staff shall arrange for the transportation of the specimen in a manner that ensures the integrity of the specimen. The person requesting the tests shall pay all costs of transporting and conducting tests on the specimen. To ensure the integrity of the specimen, the split specimen must be shipped to the selected laboratory no later than 10 days after the day the trainer is notified of the positive test. Subject to this deadline, the owner or trainer of the horse from whom the specimen was obtained is entitled to be present or have a representative present at the time the split specimen is sent for testing.]

(c) [~~(e)~~] If the test on the split specimen confirms the findings of the original laboratory, it is a prima facie violation of the applicable provisions of the chapter.

(d) [~~(f)~~] If the test on the split specimen portion does not substantially confirm the findings of the original laboratory, the stewards may not take disciplinary action regarding the original test results.

(e) [~~(g)~~] If an act of God, power failure, accident, labor strike, or any other event, beyond the control of the Commission, prevents the split from being tested, the findings of the original laboratory are prima facie evidence of the condition of the horse at the time of the race.

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 17, 2024.

TRD-202404467

Amy F. Cook

Executive Director

Texas Racing Commission

Earliest possible date of adoption: November 3, 2024

For further information, please call: (512) 833-6699