TITLE 13. CULTURAL RESOURCES

PART 2. TEXAS HISTORICAL COMMISSION

CHAPTER 16. HISTORIC SITES

13 TAC §16.7

The Texas Historical Commission (hereafter referred to as the "Commission") proposes the repeal of §16.7 of TAC, Title 13, Part 2, Chapter 16, Historic Sites, relating to Friends Organizations.

This rule repeal is needed as part of the Commission's overall effort to clarify language in order to implement a significantly revised rule on the same subject. In a separate action (Item 16.4) the THC contemporaneously proposes a new §16.7 relating to Supporting Nonprofit Partners which will replace the repealed section.

FISCAL NOTE. There will be no fiscal impact. Mark Wolfe, Executive Director, has determined that for the first five-year period the repealed rule is in effect there will be no fiscal implications for state or local governments as a result of enforcing or administering the rules, as proposed.

PUBLIC BENEFIT/COST NOTE. The benefit to the public will be achieved by providing an improved and enhanced structured approach in establishing formal partnerships between supporting nonprofits and State Historic Sites. Mr. Wolfe has also determined that for each year of the first five-year period the repeal is in effect, the public benefit will be a clearer set of criteria to evaluate the efficacy of partnerships between supporting nonprofit partners and historic sites, to ensure legal compliance of supporting nonprofit partners, and to establish practices that facilitate mission alignment between the historic site and the supporting nonprofit.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT. There are no anticipated economic costs to persons who are required to comply with the repeal as proposed. There is no effect on the local economy for the first five years that the proposed repeal is in effect; therefore, no local employment impact statement is required under Texas Government Code, §2001.022 and 2001.024(a)(6).

COSTS TO REGULATED PERSONS. The proposed repeal does not impose a cost on regulated persons or entities; therefore, they are not subject to Texas Government Code, §2001.0045.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES. The proposed repeal provides an opportunity for the historic sites division to assess efficacy of partnerships between nonprofit supporting partners and State Historic Sites. There is no anticipated economic impact of this repeal. Mr. Wolfe has also determined that there will be no negative impact on rural communities, small or micro-businesses because of implementing this repeal and therefore no regulatory flexibility analysis, as specified in Texas Government Code § 2006.002, is required. There are no anticipated economic costs to the public in compliance with this repeal, as proposed.

GOVERNMENT GROWTH IMPACT STATEMENT. During the first five years that the repeal would be in effect, the repeal: will not create or eliminate a government program; will not result in the addition or reduction of employees; will not require an increase or decrease in future legislative appropriations; will not lead to an increase or decrease in fees paid to a state agency; will not create a new regulation; will not repeal an existing regulation; and will not result in an increase or decrease in the number of individuals subject to the rule. During the first five years that the repeal would be in effect, the rule will not positively or adversely affect the Texas economy.

TAKINGS IMPACT ASSESSMENT. THC has determined that no private real property interests are affected by this proposal and the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code § 2007.043.

REQUEST FOR PUBLIC COMMENT. Comments on the proposed repeal may be submitted to Joseph Bell, Deputy Executive Director of Historic Sites, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

STATUTORY AUTHORITY. This repeal is proposed under the authority of Texas Government Code § 442.005(q), which provides the Commission with the authority to promulgate rules to reasonably affect the purposes of the Commission; Texas Government Code §§ 442.0055 Affiliated Non-Profit Organizations; Rules; Guidelines; and 442.0052, Volunteer Services.

CROSS REFERENCE TO STATUTE. No other statutes, articles, or codes are affected by this repeal.

§16.7.Friends Organizations.

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 May 6, 2022.

TRD-202201799

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: June 19, 2022

For further information, please call: (512) 463-6100


13 TAC §16.7

The Texas Historical Commission (THC) proposes new §16.7, TAC, Title 13, Part 2, Chapter 16, Historic Sites, relating to Supporting Nonprofit Partners. In a separate action (item 16.3) the THC contemporaneously proposed repeal of §16.7 relating to Friends Organizations, which this new section will replace.

This new rule is proposed under Section 442.005 (q) Title 4 Subtitle D of the Texas Government Code, which provides the Texas Historical Commission with the authority to promulgate rules and conditions to reasonably effect the purposes of this chapter.

The purpose of the new rule is to implement a significantly revised rule on the same subject. The proposed new rule will include minimum standards to include in a Memorandum of Agreement between supporting nonprofits to historic sites, the historic site, and THC. The standards are based on current IRS and Secretary of State requirements for nonprofits, as well as industry best practices to achieve public transparency. The new rule provides criteria to evaluate the efficacy of partnerships between supporting nonprofit partners and historic sites, to ensure legal compliance of supporting nonprofit partners, and to establish practices that facilitate mission alignment between the historic site and the supporting nonprofit.

No other statutes, articles, or codes are affected by this new rule.

FISCAL NOTE. Mark Wolfe, Executive Director, has determined that for the first five-year period the new rule is in effect there will be no fiscal implications for state or local governments.

PUBLIC BENEFIT/COST NOTE. Mr. Wolfe has also determined that for each year of the first five-year period the new rule is in effect, the public benefit will be a more clearly defined procedure to be followed by partner organizations.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT. There is no effect on the local economy for the first five-year period the new rule is in effect; therefore, no local employment impact statement is required under Texas Government Code, §2001.022 and 2001.024(a)(6).

COSTS TO REGULATED PERSONS. The proposed new rule does not impose a cost on regulated persons or entities; therefore, they are not subject to Texas Government Code, §2001.0045.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES. Mr. Wolfe has also determined that there will be no negative impact on rural communities, small or micro-businesses because of the new rule and therefore no regulatory flexibility analysis, as specified in Texas Government Code § 2006.002, is required.

GOVERNMENT GROWTH IMPACT STATEMENT. During the first five years that the new rule would be in effect will not create or eliminate a government program; will not result in the addition or reduction of employees; will not require an increase or decrease in future legislative appropriations; will not lead to an increase or decrease in fees paid to a state agency; will not create a new regulation; will not repeal an existing regulation; and will not result in an increase or decrease in the number of individuals subject to the rule. During the first five years that the new rule would be in effect, will not positively or adversely affect the Texas economy.

TAKINGS IMPACT ASSESSMENT. THC has determined that no private real property interests are affected by this proposal and the proposal does not restrict or limit an owner’s right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code § 2007.043.

REQUEST FOR PUBLIC COMMENT. Comments on the proposal may be submitted to Joseph Bell, Deputy Executive Director of Historic Sites, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

STATUTORY AUTHORITY. This new rule is proposed under the authority of Texas Government Code §442.005(q), which provides the Commission with the authority to promulgate rules to reasonably affect the purposes of the Commission; Texas Government Code §442.0055 Affiliated Non-Profit Organizations; Rules; Guidelines; and §442.0052, Volunteer Services.

CROSS REFERENCE TO STATUTE. No other statutes, articles, or codes are affected by this new rule.

§16.7.Supporting Nonprofits Partners.

(a) The Deputy Executive Director for State Historic Sites or that person's designee shall work with members of the public to establish and maintain Supporting Nonprofit Partners (SNPs) to assist the Texas Historical Commission (THC) in carrying out its mission through the preservation of, and programming at, State Historic Sites as appropriate to each site.

(b) To be considered a SNP pursuant to this section, an entity must:

(1) Either receive a 501c3 designation from the Internal Revenue Service and be incorporated in accordance with the Texas Nonprofit Corporation Act (Business Organizations Code, Chapter 22), or be fiscally sponsored by the Friends of the Texas Historical Commission (FTHC), and

(2) Within 60 days of receiving an official 501c3 designation or notice of fiscal sponsorship by the FTHC, enter into a Memorandum of Agreement with the THC, which agreement will detail the duties and responsibilities of both parties.

(c) The SNP will promptly notify THC of any change to its legal or tax-exempt status.

(d) If a SNP ceases to exist, any funds raised for the benefit of the State Historic Site will be paid to THC or to the FTHC for use at that State Historic Site.

(e) SNPs subject to these provisions:

(1) Will not hold or obligate THC funds.

(2) Will comply with all applicable rules, regulations, and laws, regarding discrimination based on race, color, national origin, sex, age, and disability.

(3) Will not use or permit the use of THC's intellectual property without the express written agreement of THC, including trademarks, logos, names and seals.

(4) Will not employ a THC employee in a paid position or provide compensation or any direct personal benefit to a THC employee.

(5) May use equipment, facilities, or services of employees of THC as long as such use follows a written agreement that provides for the payment of adequate compensation or identifies the way in which such use will benefit THC.

(6) Will prepare and send to the appropriate THC Site Manager and to the THC Community Engagement Coordinator an annual report including a list of the primary activities undertaken during the previous year, a summary of significant achievements and challenges over the previous year, and other information requested by the THC, and an annual plan of activities proposed for the following year, also making said report and plan publicly available.

(7) Will complete their annual IRS 990, 990-EZ, 990-N, or 990-PF, depending on the amount of their income and type of nonprofits status, and provide THC with proof of IRS receipt. They will also make the IRS 990 available to the general public, upon request, regardless of whether or not a SNP is required to file an IRS 990 with the IRS.

(8) Will file their articles of incorporation, by-laws, most recent financial statements, and any updates to these documents with THC. These documents will be made available to the public upon request.

(9) Will not engage in activities that would require it or a person acting on its behalf to register as a lobbyist under Texas law, Texas Government Code, Chapter 305. However, SNPs may provide information to the legislature or to other elected or appointed officials.

(10) Will not donate funds to a political campaign or endorse a political candidate.

(11) Will notify the THC Site Manager of all meetings and allow a THC representative to attend all meetings. This includes, but is not limited to, meetings of its general membership, managing board, and committees. The Site Manager must be notified by letter, email, or telephone sufficiently in advance of the meeting to allow the THC representative to attend. A SNP should also notify other SNPs associated with the property, facility, or program of all meetings and allow a representative to attend.

(12) Will raise funds in support of their associated sites only for the specific purposes authorized in writing in advance by THC.

(13) Will undertake programs that support THC's mission as agreed to in writing in advance by THC.

(14) Will decline donations that require particular action to be taken by THC unless agreed to in writing in advance by THC.

(15) Will account for all funds acquired by using Generally Accepted Accounting Principles.

(16) Will use all donations received to benefit the facility, property, or program with which the SNP is associated or further the SNP's mission related to the facility, property, or program, including donations to defray operating costs.

(17) May make unrestricted cash donations to THC, which THC may choose to designate for use for a specific project or program.

(f) The officers and directors of a SNP subject to these provisions:

(1) Will adopt and maintain a conflict-of-interest policy. This policy must include safeguards to prevent board members or their families from benefiting financially from any business decision of the SNP.

(2) Will ensure that any compensation paid to executives or managers is reasonable.

(3) Will hold at least two regular meetings of the Board of Directors annually.

(4) Will ensure that each board member and/or director is duly informed of the SNP's activities, and will provide new board members with the following:

(A) A copy of the SNP's articles of incorporation and by-laws.

(B) b. A copy of the SNP's most recent financial statements.

(C) A copy of the THC's administrative rules on SNPs and sponsorship.

(D) A copy of any current agreements between the SNP and THC.

(g) The following provisions shall govern an SNP's ability to ask for and accept sponsorships for their, or THC's projects and programs:

(1) For purposes of this section, a sponsorship is the payment of money, transfer of property, or performance of services in which there is no expectation of any substantial return benefit other than recognition or a non-substantial benefit.

(2) All sponsorship requests must have prior written approval of the THC Site Manager.

(3) All statewide sponsorships and their recognition must have prior written approval from the THC Executive Director.

(4) All local sponsorships and their recognition must have prior written approval from the THC Site Manager whose area of responsibility includes the facility, property or program to be supported by the local sponsorship.

(5) SNPs may not ask for or accept sponsorships from a person or entity in litigation with THC or determined by the THC to conflict with THC's mission or legislative mandates.

(6) Recognition for sponsors:

(A) Is allowed only in the context of the particular THC program that the sponsor has supported with a financial or in-kind contribution.

(B) Is allowed only if the contribution is greater than the cost of recognition.

(C) Will not be in the form of signage on motor vehicles or trailers owned by the state that were purchased or maintained with THC funds.

(D) Will not overshadow the project, purposes of the project, mission or branding of THC.

(7) In determining the type of recognition appropriate in each case, THC will consider:

(A) The level of contribution in terms of percentage of funds required to complete the program, event, or material.

(B) The level of contribution related to total sponsorship dollars received.

(C) The scope of exposure (for example statewide, regional, local, or a single location).

(D) The duration of exposure (for example one day, one month, one year).

(E) The sponsor's name or logo and a reference to sponsor's location may be broadcast or displayed. However, the recognition may not promote the sponsor's products, services, or facilities.

(F) THC officers and employees may not act as the agent for any SNP or donor in negotiating the terms or conditions of any agreement related to the donation of funds, services, or property to THC by the SNP or donor.

(h) THC shall maintain a list of SNPs, which shall be made available to the public upon request.

(i) THC will not hold or obligate funds or property belonging to an SNP.

(j) THC may develop model policies and procedures for use by SNPs.

(k) THC will provide a liaison to serve as a resource to SNPs and to administer the terms of an SNP's Memorandum of Agreement with THC.

(l) THC employees may serve as non-voting members of the board of an SNP only in an ex-officio capacity.

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 May 6, 2022.

TRD-202201800

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: June 19, 2022

For further information, please call: (512) 463-6100


CHAPTER 21. HISTORY PROGRAMS

SUBCHAPTER B. OFFICIAL TEXAS HISTORICAL MARKER PROGRAM

13 TAC §21.12

The Texas Historical Commission (Commission) proposes amendments to the Texas Administrative Code, Title 13, Part 2, Chapter 21, Subchapter B, §21.12, related to marker text requests. The proposed amendment to §21.12 clarifies the rule by stating that a supplemental plaque is not a choice, but rather an interim measure when funds are unavailable for immediate replacement of markers that have received approval through the historical marker request process.

FISCAL NOTE. Mark Wolfe, Executive Director, has determined that for the first five-year period the amended rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering these rules.

PUBLIC BENEFIT. Mr. Wolfe has also determined that for the first five-year period the amended rule is in effect, the public benefit will be the preservation of and education about state historic resources.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES. Mr. Wolfe has also determined that there will be no impact on rural communities, small businesses, or microbusinesses as a result of implementing these rules. Accordingly, no regulatory flexibility analysis, as specified in Texas Government Code §2006.002, is required.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT. There are no anticipated economic costs to persons who are required to comply with the amendments to these rules, as proposed. There is no effect on local economy for the first five years that the proposed section is in effect; therefore, no local employment impact statement is required under Texas Government Code §2001.022 and 2001.024(a)(6).

GOVERMNENT GROWTH IMPACT STATEMENT. Because the proposed amendments only concern responsibilities of reviewing marker text, during the first five years that the amendments would be in effect, the proposed amendments: will not create or eliminate a government programs; will not result in the addition of reduction of employees; will not require an increase or decrease in future legislative appropriations; will not lead to an increase or decrease in fees paid to a state agency; will not create a new regulation; will not repeal an existing regulation; and will not result in an increase or decrease in the number of individuals subject to the rule. During the first five years that the amendments would be in effect, the proposed amendments will not positively or adversely affect the Texas economy.

TAKING IMPACT ASSESSMENT. The Commission has determined that no private real property interests are affected by this proposal and the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT. Comments on the proposal may be submitted to Mark Wolfe, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

STATUTORY AUTHORITY. These amendments are proposed under the authority of Texas Government Code §442.005(q), which provides the Commission with the authority to promulgate rules to reasonably affect the purposes of the Commission, and Texas Government Code §442.006(h), which requires the Commission to adopt rules for the historical marker program.

CROSS REFERENCE TO OTHER LAW. No other statutes, articles, or codes are affected by these amendments.

§21.12.Marker Text Requests.

(a) A request for a review of the text of any Official Texas Historical Marker (OTHM) that is the property of the State of Texas and which falls under the jurisdiction of the Texas Historical Commission ("Commission") may be submitted to dispute the factual accuracy of the OTHM based on verifiable, historical evidence that the marker:

(1) includes the name of an individual or organization that is not spelled correctly;

(2) includes a date that is not historically accurate;

(3) includes a statement that is not historically accurate; or

(4) has been installed at the wrong location.

(b) A request for review of OTHM text shall be submitted on a form provided by the Commission for that purpose, accompanied by no more than 10 single-sided pages of supplemental material printed in a font size no smaller than 11.

(c) OTHM review requests shall be submitted to the Commission at 1511 Colorado St., Austin, Texas [TX] 78701; by mail to P.O. Box 12276, Austin, Texas [TX] 78711; or by email to thc@thc.texas.gov. The Commission will send a copy of the request and supporting materials to the County Historical Commission (CHC) for the county in which the OTHM is located, return receipt requested. In the absence of a formally-established CHC, a copy will be submitted to the county judge, return receipt requested.

(d) The CHC or county judge shall have 10 days from the date of the receipt of the request to submit a response to the Commission if they wish to do so. The CHC's [CHC] or county judge's response shall consist of not more than 10 single-sided pages of material printed in a font no smaller than 11 and shall be signed by the chair of the CHC or by the county judge.

(e) Within 20 days of receiving the CHC's [CHC] or county judge's response to the request, or within 30 days of receiving the request itself if there is no CHC or county judge response, the staff at the Commission shall review the information submitted and respond to the requestor and to the CHC or county judge with the staff recommendation in writing, return receipt requested.

(f) During the period previously referred to in subsection (e) of this section, Commission staff may choose to refer the request to a panel of professional historians for a recommendation.

(g) The panel will consist of three professional historians: [1)]

(1) the State Historian appointed by the Governor pursuant to Texas Government Code Section 3104.051; [2)]

(2) the historian appointed by the Governor to serve on the Commission pursuant to Texas Government Code Section 442.002; and [3)]

(3) a professional historian selected by these two historians from the faculty of a public college or university upon receiving the request. If no professional historian has been appointed by the Governor to serve on the Commission, the Governor's appointed chair of the Commission or the chair's designee will serve on the panel in place of that individual.

(h) In reaching its decision, the panel will review the same information reviewed by the staff, which shall be no more than 10 single-sided pages of supplemental material printed in a font no smaller than 11. The panel shall be chaired by the State Historian who shall determine whether the panel will meet in person or deliberate through electronic or other means.

(i) [(h)] The panel shall develop a written recommendation supported by at least two of its members. The written recommendation of the panel will be delivered to the Commission staff no later than 30 days following the panel's receipt of the background materials as provided above. If the panel is unable to develop such a recommendation, the panel chair shall so report in writing to the Commission's staff within the same 30-day period. Commission staff will consider the panel's report and send their final recommendations to the requestor and to the CHC or county judge within 15 days after receiving the panel's report, return receipt requested.

(j) [(i)] If the requestor, or the County Historical Commission or county judge are not satisfied with the staff recommendation, they may choose to file an objection with the Commission's History Programs Committee ("Committee"). Such objections must be postmarked no later than 5 days following receipt of the staff recommendation. If no such objection is filed, the staff or panel recommendation with accompanying marker text revisions will be placed on the next consent agenda of the Texas Historical Commission for approval.

(k) [(j)] Review of objections filed with the Committee shall be based on copies of the same information as was initially provided to the panel of historians under subsection (g) of this section. If the matter was not submitted to the panel of historians, the objection shall be based on the material previously submitted by the requestor or requestors and CHC or county judge to the marker staff under subsections (b) and (d) of this section, and on any additional information provided by marker staff, which shall be no more than 10 single-sided pages of supplemental material printed in a font size no smaller than 11.

(l) [(k)] The Committee shall include the objection on the agenda of its next scheduled meeting, assuming said meeting happens at least 20 days after the objection is received by the Commission. If the 20-day deadline is not met, the objection shall be on the agenda of the following meeting of the Committee.

(m) [(l)] The Committee may choose to take public testimony on the objection[,] or not. If public testimony is invited, such testimony may be limited by the Committee chair to a period of time allocated per speaker, per side (pro and con), or both.

(n) [(m)] The decision of the Committee, along with any recommendation from staff and/or the panel, shall be placed on the consent agenda of the full Commission for approval.

(o) [(n)] If a request or objection is approved by the Commission, the existing marker will be replaced [staff will determine if the existing marker requires replacement or if it can be corrected through the installation of a supplemental marker. The cost of such correction shall be paid by the Commission], subject to the availability of funds for that purpose. If such funds are not readily available, a supplemental marker may serve in the interim.

(p) [(o)] With all approved request or objections, Commission staff will write the replacement text. Markers will be produced by the contracted foundry and production will be subject to the foundry's schedule.

(q) (p)] The Commission will not accept subsequent requests or objections that are substantively similar to a request or objection that is not already going through or has already gone through this request process. A decision not to accept a request or objection under this section may be made by the Executive Director.

(r) [(q)] A request for review may only be filed against a single marker, and no individual or organization may file more than one request for review per calendar year.

The Commission hereby certifies that the section as proposed has been reviewed by legal counsel and found to be a valid exercise of the agency's authority.

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 May 6, 2022.

TRD-202201798

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: June 19, 2022

For further information, please call: (512) 463-6100