Proposed Rules Title 37

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY

SUBCHAPTER C. VEHICLE INSPECTION STATION OPERATION

The Texas Department of Public Safety (the department) proposes an amendment to §23.25, concerning Vehicle Inspection Fees. The proposed amendment implements Senate Bill 2102, 88th Leg., R.S. (2023), by adopting the initial three-year fee for inspection of rental passenger cars or light trucks meeting the requirements of §548.1025, Transportation Code.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period this rule is in effect there will be no fiscal implications for state or local government or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the section as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.

Ms. Whittenton has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of this rule will be the publication of the initial three-year fee for inspection of certain rental vehicles meeting the requirements of Texas Transportation Code, §548.1025.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require the creation of new employee positions nor eliminate current employee positions; will not require an increase or decrease in future legislative appropriations to the agency; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create a new regulation. The proposed rulemaking does not expand, limit, or repeal an existing regulation. The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability. During the first five years the proposed rule is in effect the proposed rule should not impact positively or negatively the state's economy.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Texas Department of Public Safety, P.O. Box 4087, MSC 0240, Austin, Texas 78773-0240, or by email to RSD.Rule.Comments@dps.texas.gov. Email submission only is preferred. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work; Texas Transportation Code, §548.002, which authorizes the department to adopt rules to enforce Chapter 548; and Texas Transportation Code, §548.5035, which requires the department to establish the fee by rule as proposed, S.B. 2102, 88th Leg., R.S. (2023).

Texas Government Code, §411.004(3); Texas Transportation Code, §548.002 and §548.5035, are affected by this proposal.

§23.25.Vehicle Inspection Fees.

(a) The vehicle inspection fee is a charge for performing the vehicle inspection only[,] and may not exceed the amount set by Texas Transportation Code, Chapter 548 or this chapter.

(b) The vehicle inspection station may collect the station portion of the inspection fee at the time of the original inspection whether the vehicle is passed or rejected.

(c) Charges for additional services related to the repair, replacement, or adjustment of the required items of inspection must be expressly authorized, or approved by the customer, and must be separately listed on the bill from the statutorily mandated inspection fee.

(d) A vehicle inspection station or vehicle inspector may not advertise, charge, or attempt to charge a fee in a manner that could reasonably be expected to cause confusion or misunderstanding on the part of an owner or operator presenting a vehicle regarding the relationship between the statutorily mandated inspection fee and a fee for any other service or product offered by the vehicle inspection station.

(e) The initial three-year fee for inspection of certain rental vehicles meeting the requirements of Texas Transportation Code, §548.1025 shall be $22.08.

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 August 25, 2023.

TRD-202303144

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2023

For further information, please call: (512) 424-5848

CHAPTER 35. PRIVATE SECURITY

SUBCHAPTER A. GENERAL PROVISIONS

37 TAC §§35.5, 35.9, 35.13

The Texas Department of Public Safety (the department) proposes amendments to §§35.5, 35.9, and 35.13, concerning General Provisions. The changes to §35.5, concerning Standards of Conduct, clarify that the company license holder may not use the department's name in advertisements and specify its responsibilities relating to the conduct of its employees. The changes to §35.9, concerning Advertisements, exempt publishing the licensee's address in its advertisements when that address is a residence and clarify that business cards constitute advertisements. The changes to §35.13, concerning Drug-Free Workplace Policy, clarify that a sole proprietor must have a drug-free workplace policy.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there will be no fiscal implications for state or local government or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with these sections as proposed. There is no anticipated economic cost to individuals who are required to comply with these rules as proposed. There is no anticipated negative impact on local employment.

Ms. Whittenton has determined that for each year of the first five-year period these rules are in effect the public benefit anticipated as a result of these rules will be greater clarity and consistency in the regulation of the private security industry.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require the creation of new employee positions nor eliminate current employee positions; will not require an increase or decrease in future legislative appropriations to the agency; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create a new regulation. The proposed rulemaking does expand, limit, or repeal an existing regulation. The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability. During the first five years the proposed rule is in effect the proposed rule should not impact positively or negatively the state's economy.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Texas Department of Public Safety, P.O Box 4087, MSC 0240, Austin, Texas 78773-0240, or by email to RSD.Rule.Comments@dps.texas.gov. Email submission only is preferred. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

Texas Government Code, §411.004(3) and Texas Occupations Code, §1702.061(a), are affected by this proposal.

§35.5.Standards of Conduct.

(a) The State Seal of Texas, a department seal or insignia, or the department's name or the name of a division within the department, may not be displayed as part of a uniform or identification card, as [or] markings on a motor vehicle, or in an advertisement or on a website, other than on such items prepared or issued by the department. The department's name may be used for the limited purpose of indicating the person or company is regulated by the department.

(b) All licensees, [~~and~~] company representatives, and employees shall cooperate fully with any investigation conducted by the department, including but not limited to the provision of employee records upon request by the department and compliance with any subpoena issued by the department. Commissioned security officers and personal protection officers shall cooperate fully with any request of the Medical Advisory Board made pursuant to Health and Safety Code, §12.095 relating to its determination of the officer's ability to exercise sound judgment with respect to the proper use and storage of a handgun. Violation of this subsection may result in the suspension of the license or commission for the duration of the noncompliance.

(c) An individual licensee issued a pocket card shall carry the pocket card on or about their person while on duty and shall present same to a peace officer or to a representative of the department upon request.

(d) A company license holder may not require a customer provide any documentation certifying that the customer has received a COVID-19 vaccination, or is in post-transmission recovery, to gain entry to the licensee's premises or to receive regulated services from the license holder.

(e) Company license holders are responsible for ensuring that employees or independent contractors who interact with customers or the general public provide personal identification, a company business card or other identification reflecting the company license holder's name, address, phone number, and license number, and DPS contact information.

(f) Company license holders are responsible for the conduct of their employees, regardless of whether the employee is licensed or unlicensed, is an independent contractor, or is performing a service for which no license is required. In particular, company license holders will be held responsible for fraud, misrepresentations or deceptive trade practices of their employees relating to sales or other customer interactions conducted on behalf of the company license holder.

§35.9.Advertisements.

(a) A licensee's advertisements must include:

(1) The company name and address as it appears in the records of the department unless the address is the license holder's residential address; and

(2) The company's license number.

(b) No licensee shall use the Texas state seal, [or] the name or insignia of the department, or the name or insignia of a division within the department to advertise or publicize a commercial undertaking, or otherwise violate Texas Business & Commerce Code, §17.08 or Texas Government Code, §411.017. The department's name may be used for the limited purpose of indicating the person or company is regulated by the department.

(c) The use of the department's name is prohibited when it may give a reasonable person the impression that the department issued the statement or that the individual is acting on behalf of the department.

(d) For purposes of this section, an advertisement includes any media created or used for the purpose of promoting the regulated business of the licensee, including business cards.

§35.13.Drug-Free Workplace Policy.

(a) In the interest of creating a safe and drug-free work environment for clients and employees, all licensed businesses [~~companies~~] shall establish and implement a drug-free workplace policy consistent with the Texas Workforce Commission's "Drug-Free Workplace Policy."

(b) A copy of the business' [~~company's~~] drug-free workplace policy shall be signed by each employee and kept in each employee's file.

(c) For purposes of subsection (b) of this section, a sole proprietor who performs regulated services on behalf of the business is considered an employee of the business.

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 August 25, 2023.

TRD-202303145

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2023

For further information, please call: (512) 424-5848

SUBCHAPTER D. DISCIPLINARY ACTIONS

37 TAC §35.52

The Texas Department of Public Safety (the department) proposes an amendment to §35.52, concerning Administrative Penalties. The proposed amendment updates the administrative penalty schedule in §35.52(a) by adding penalties for a violation of proposed changes to §35.5, titled Standards of Conduct, concerning the company license holder's responsibilities relating to the conduct of its employees.

Ms. Whittenton has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of this rule will be greater clarity and consistency in the regulation of the private security industry.

Texas Government Code, §411.004(3) and Texas Occupations Code, §1702.061(a), are affected by this proposal.

§35.52.Administrative Penalties.

(a) The administrative penalties in this section are guidelines to be used in enforcement proceedings under the Act. The fines are to be construed as maximum penalties only, and are subject to application of the factors provided in Texas Government Code, §411.524.

Figure: 37 TAC §35.52(a) (.pdf)

[~~Figure: 37 TAC §35.52(a)~~]

(b) The failure to pay an administrative penalty that has become final, whether by the passage of the deadline to appeal or by final court disposition, whichever is later, will result in suspension of the license with no further notice or right to appeal. The suspension will take effect upon the passage of the deadline to appeal and will remain in effect until the penalty is paid in full.

(c) A license holder whose license is revoked for an administrative violation may reapply as a new applicant after the second anniversary of the date of the revocation. An application submitted prior to the second anniversary of the date of the revocation will be denied.

(d) A violation of this Chapter or the Act by a company representative as defined in §35.1 of this title (relating to Definitions) acting on behalf of a licensed company will be construed as a violation by the company.

(e) The violation of operating with an expired license applies to operation within the one year grace period to renew. The violation of operating without a license will apply to those operating after the one year grace period

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 August 25, 2023.

TRD-202303146

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2023

For further information, please call: (512) 424-5848

SUBCHAPTER F. COMMISSIONED SECURITY OFFICERS

37 TAC §35.81

The Texas Department of Public Safety (the department) proposes an amendment to §35.81, concerning Application for a Security Officer Commission. The proposed amendment implements House Bill 3424, 88th Leg., R.S. (2023), which requires applicants for a commissioned security officer license to undergo a psychological test to be eligible for the license.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require the creation of new employee positions nor eliminate current employee positions; will not require an increase or decrease in future legislative appropriations to the agency; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create a new regulation. The proposed rulemaking does expand, limit, or repeal an existing regulation. The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability. During the first five years the proposed rule is in effect the proposed rule should not impact positively or negatively the state's economy.

This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work; and Texas Occupations Code, §1702.061(a), which authorizes the Public Safety Commission to adopt rules to guide the department in its administration of Texas Occupations Code, Chapter 1702; and Texas Occupations Code, §1702.163, which authorizes the commission to adopt a rule requiring an applicant for a security officer commission to complete a psychological test, H.B. 3424, 88th Leg., R.S. (2023).

Texas Government Code, §411.004(3) and Texas Occupations Code, §1702.061(a) and §1702.163, are affected by this proposal.

§35.81.Application for a Security Officer Commission.

(a) A complete security officer commission application must be submitted on the most current version of the form provided by the department. The application must include:

(1) The required application fee;

(2) Fingerprints in form and manner approved by the department;

(3) The required criminal history check fee;

(4) A copy of the applicant's Level II certificate of completion;

(5) A copy of the applicant's Level III certificate of completion;

(6) Non Texas residents must provide a copy of an identification card issued by the state of the applicant's residence, or other government issued identification card; [~~and~~]

(7) Non United States citizens must submit a copy of their current alien registration card. Non-resident aliens must also submit documents establishing the right to possess firearms under federal law; and[.]

(8) Proof of completion of the Minnesota Multiphasic Personality Inventory on the department-prescribed form. The form must be signed by the administering psychologist or psychiatrist and must reflect the psychologist's or psychiatrist's interpretation of the results and the determination that the applicant is not disqualified from the license by reason of a mental health condition.

(b) Incomplete applications will not be processed and will be returned for clarification or missing information.

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 August 25, 2023.

TRD-202303147

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2023

For further information, please call: (512) 424-5848

SUBCHAPTER G. PERSONAL PROTECTION OFFICERS

37 TAC §35.91

The Texas Department of Public Safety (the department) proposes an amendment to §35.91, concerning Requirements for Personal Protection License. The proposed amendment ensures consistency with the change proposed to §35.81, concerning Application for a Security Officer Commission, which implements House Bill 3424, 88th Leg., R.S. (2023).

Texas Government Code, §411.004(3) and Texas Occupations Code, §1702.061(a), are affected by this proposal.

§35.91.Requirements for Personal Protection License.

(a) An applicant for a personal protection license shall:

(1) Submit a written application for a personal protection license on a form prescribed by the department;

(2) Be at least twenty-one (21) years of age;

(3) Either possess a valid security officer commission issued prior to applying for a personal protection license, or submit an application for security officer commission in conjunction with the application for a personal protection license;

(4) Submit proof that the applicant has successfully completed the personal protection officer course taught by an approved personal protection officer instructor; and

(5) Submit proof of completion of the Minnesota Multiphasic Personality Inventory [~~test or equivalent (proof of completion of the Minnesota Multiphasic Personality Inventory test shall be~~] on the department-prescribed [~~prescribed~~] form [~~Declaration of Psychological and Emotional Health and shall be signed by a licensed psychologist)~~]. The form must be signed by the administering psychologist or psychiatrist and must reflect the psychologist's or psychiatrist's interpretation of the results and the determination that the applicant is not disqualified from the license by reason of a mental health condition.

(b) A personal protection officer may transfer their license to another employer if the personal protection officer:

(1) Has transferred their security officer commission to the new employer; and

(2) Submits the appropriate form and transfer fee to the department within fourteen (14) days of the transfer of employment to the new employer.

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 August 25, 2023.

TRD-202303148

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2023

For further information, please call: (512) 424-5848

SUBCHAPTER J. SPECIAL COMPANY LICENSE QUALIFICATIONS

37 TAC §35.124

The Texas Department of Public Safety (the department) proposes new §35.124, concerning Alarm Company and Alarm Training School Licenses. The new rule specifies the experience required for alarm company and alarm training school license applicants.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require the creation of new employee positions nor eliminate current employee positions; will not require an increase or decrease in future legislative appropriations to the agency; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create a new regulation. The proposed rulemaking does not expand, limit, or repeal an existing regulation. The proposed rule does not increase or decrease the number of individuals subject to the rule’s applicability. During the first five years the proposed rule is in effect the proposed rule should not impact positively or negatively the state’s economy.

Texas Government Code, §411.004(3) and Texas Occupations Code, §1702.061(a), are affected by this proposal.

§35.124.Alarm Company and Alarm Training School Licenses.

Pursuant to the Act, the department has determined an applicant for licensure as an alarm company, alarm training school, or the prospective company representative of the applicant company must have two (2) consecutive years of alarm related experience, including installation, monitoring, sales, or related supervision.

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 August 25, 2023.

TRD-202303149

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2023

For further information, please call: (512) 424-5848

SUBCHAPTER L. TRAINING

37 TAC §35.143

The Texas Department of Public Safety (the department) proposes amendments to §35.143, concerning Training Instructor Approval. The proposed amendments provide an additional method to qualify as a firearm training instructor and removes the minimum number of training hours required, which is outdated and inconsistent with the certifications otherwise required.

Texas Government Code, §411.004(3) and Texas Occupations Code, §1702.061(a), are affected by this proposal.

§35.143.Training Instructor Approval.

(a) An application for approval as a training instructor shall contain evidence of qualification as required by the department. Instructors may be approved for classroom or firearm training, or both. An individual may apply for approval for one or both of these categories. To qualify for classroom or firearm instructor approval, the applicant must submit acceptable certificates of training for each category. [~~The classroom instructor and firearm certificates shall represent a combined minimum of forty (40) hours of department approved instruction.~~]

(b) The items detailed in this subsection may constitute proof of qualification as a classroom instructor for security officers:

(1) An instructor's certificate issued by Texas Commission on Law Enforcement (TCOLE);

(2) An instructor's certificate issued by federal, state, or political subdivision law enforcement agency approved by the department;

(3) An instructor's certificate issued by the Texas Education Agency (TEA);

(4) An instructor's certificate relating to law enforcement, private security, or industrial security issued by a junior college, college, or university; or

(5) A license to carry handgun instructor certificate issued by the department.

(c) The items listed in this subsection may constitute proof of qualification as a firearm training instructor, if reflecting training completed within two (2) years of the date of the application:

(1) A handgun instructor's certificate issued by the National Rifle Association;

(2) A firearm instructor's certificate issued by TCOLE; [or]

(3) A firearm instructor's certificate issued by a federal, state, or political subdivision law enforcement agency approved by the department; or[.]

(4) Documentation establishing that the applicant regularly instructs others in the use of handguns and has graduated from a handgun instructor school that uses a nationally accepted course designed to train persons as handgun instructors.

(d) Proof of qualification as an alarm systems training instructor shall include proof of completion of an approved training course on alarm installation.

(e) Proof of qualification as a personal protection officer instructor shall include, but not be limited to:

(1) A firearm instructor's certificate issued by TCOLE along with proof that the individual has instructed nonlethal self-defense or nonlethal defense of a third party for three (3) or more years. Evidence of instruction experience must include a one page detailed description of the training provided and the schedule or specific date of classes taught.

(2) An instructor's certificate issued by federal, state, or political subdivision law enforcement academy along with proof that the individual has instructed nonlethal self-defense or nonlethal defense of a third party for three (3) or more years. Evidence of instruction experience must include a one page detailed description of the training provided and the schedule or specific dates of classes taught.

(3) An instructor's certificate issued by TEA along with proof that the individual has instructed nonlethal self-defense or nonlethal defense of a third party for three (3) or more years. Evidence of instruction experience must include a one page detailed description of the training provided and the schedule or specific dates of classes taught.

(4) An instructor's certificate relating to law enforcement, private security or industrial security issued by a junior college, college or university along with proof that the individual has instructed nonlethal self-defense or nonlethal defense of a third party for three (3) or more years. Evidence of instruction experience must include a one page detailed description of the training provided and the schedule or specific dates of classes taught.

(5) Evidence of successful completion of a department approved training course for personal protection officer instructors.

(f) Notice shall be given in writing to the department within fourteen (14) days after a change in address of the approved instructor.

(g) In addition to summary actions under the Act, based on criminal history disqualifiers, the department may revoke or suspend an instructor's approval or deny the application or renewal thereof upon evidence that:

(1) The instructor or applicant has violated any provisions of the Act or this chapter;

(2) The qualifying instructor's certificate has been revoked or suspended by the issuing agency;

(3) A material false statement was made in the application; or

(4) The instructor does not meet the qualifications set forth in the provisions of the Act and this chapter.

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 August 25, 2023.

TRD-202303150

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2023

For further information, please call: (512) 424-5848

CHAPTER 36. METALS RECYCLING ENTITIES

SUBCHAPTER A. GENERAL PROVISIONS

37 TAC §36.1

The Texas Department of Public Safety (the department) proposes an amendment to §36.1, concerning Definitions. The proposed amendment removes the definition of "fixed location" relating to the regulation of metal recycling entities because the definition conflicts with the statutory definition adopted in Senate Bill 224, 88th Leg., R.S. (2023), amending the Metals Recycling Entities Act (Occupations Code, Chapter 1956).

Ms. Whittenton has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of this rule will be greater clarity in regulation of the metal recycling industry and compliance with legislation.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require the creation of new employee positions nor eliminate current employee positions; will not require an increase or decrease in future legislative appropriations to the agency; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create a new regulation. The proposed rulemaking does expand, limit, or repeal an existing regulation. The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability. During the first five years the proposed rule is in effect the proposed rule should not impact positively or negatively the state's economy.

Texas Government Code, §411.004(3), and Texas Occupations Code, §1956.013, are affected by this proposal.

§36.1.Definitions.

The terms in this section have the following meanings when used in this chapter unless the context clearly indicates otherwise:

(1) Act--Texas Occupations Code, Chapter 1956.

(2) Advisory letter--An informational notification of an alleged minor violation of statute or administrative rule for which no disciplinary action is proposed.

(3) Applicant--A person who has applied for registration under the Act.

(4) Business owner--A sole proprietor, partner, member, or other individual with a financial interest in the entity.

(5) Commission--The Public Safety Commission.

(6) Controlling interest--More than 50% ownership interest in the entity.

(7) Department--The Texas Department of Public Safety.

~~[(8) Fixed location--A building or structure for which a certificate of occupancy can be issued.]~~

(8) [~~(9)~~] Immediate family member--A parent, child, sibling, or spouse.

(9) [~~(10)~~] Military service member, military veteran, and military spouse--Have the meanings provided in Texas Occupations Code, §55.001.

(10) [~~(11)~~] On-site representative--An individual responsible for the day-to-day operation of the location.

(11) [~~(12)~~] Person--A corporation, organization, agency, business trust, estate, trust, partnership, association, holder of a certificate of registration, an individual, or any other legal entity.

(12) [~~(13)~~] Personal identification document--Has the meanings provided by Texas Occupations Code, §1956.001(8) of the Act.

(13) [~~(14)~~] Program--Texas Metals Program.

(14) [~~(15)~~] Registrant--A person who holds a certificate of registration under the Act.

(15) [~~(16)~~] Revocation--The withdrawal of authority to act as a metal recycling entity under the Act.

(16) [~~(17)~~] Statutory agent--The natural person to whom any legal notice may be delivered for each location.

(17) [~~(18)~~] Suspension--A temporary cessation of the authority to act as a metal recycling entity under the Act.

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 August 25, 2023.

TRD-202303151

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2023

For further information, please call: (512) 424-5848

37 TAC §36.5

The Texas Department of Public Safety (the department) proposes the repeal of §36.5, concerning Sellers of Catalytic Converters in the Ordinary Course of Business. The proposed repeal removes the department's clarification of the statutory exemption for businesses engaged in the sale of used catalytic converters in the ordinary course of business because the exempted entities are now expressly listed in statute pursuant to Senate Bill 224, 88th Leg., R.S. (2023), amending the Metals Recycling Entities Act (Occupations Code, Chapter 1956).

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require the creation of new employee positions nor eliminate current employee positions; will not require an increase or decrease in future legislative appropriations to the agency; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create a new regulation. The proposed rulemaking does expand, limit, or repeal an existing regulation. The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability. During the first five years the proposed rule is in effect the proposed rule should not impact positively or negatively the state's economy.

Texas Government Code, §411.004(3), and Texas Occupations Code, §1956.013, are affected by this proposal.

§36.5.Sellers of Catalytic Converters in the Ordinary Course of Business.

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 August 25, 2023.

TRD-202303152

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2023

For further information, please call: (512) 424-5848

SUBCHAPTER B. CERTIFICATE OF REGISTRATION

37 TAC §36.11

The Texas Department of Public Safety (the department) proposes amendments to §36.11, concerning Application for Certificate of Registration. The proposed amendments are required to conform with statutory changes enacted in Senate Bill 224, 88th Leg., R.S. (2023), amending the Metals Recycling Entities Act (Occupations Code, Chapter 1956). S.B. 224 requires an applicant for a certificate of registration to provide the physical address of the fixed location at which it will conduct all or most of its regulated activity; it requires an applicant to submit a declaration describing the extent to which the applicant intends to engage in transactions involving catalytic converters removed from motor vehicles during the applicant's business activity; and it requires the updating of the declaration to reflect relevant changes to the licensee's activities. The proposed amendment also removes an unnecessary application requirement.

This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work; and Texas Occupations Code, §1956.013, which authorizes the Public Safety Commission to adopt rules to administer Chapter 1956 and §1956.022, which authorizes the commission to adopt rules to establish qualifications for a metals recycling entity certificate of registration.

Texas Government Code, §411.004(3), and Texas Occupations Code, §1956.013 and §1956.022, are affected by this proposal.

§36.11.Application for Certificate of Registration.

(a) A certificate of registration may only be obtained through the department's online application process.

(b) The application for certificate of registration must include, but is not limited to:

(1) Criminal history disclosure of all convictions for the owner with a controlling interest in the business, or if no owner has a controlling interest in the business, for the entity's on-site representative;

(2) Proof of ownership and current status as required by the department, including but not limited to, a current Certificate of Existence or Certificate of Authority from the Texas Office of the Secretary of State and a Certificate of Good Standing from the Texas Comptroller of Public Accounts;

(3) All fees required pursuant to §36.17 of this title (relating to Fees);

[(4) A copy of any license or permit required by a county, municipality, or political subdivision of this state in order to act as a metal recycling entity in that county or municipality, issued to the applicant;]

(4) [~~(5)~~] Proof of training pursuant to §36.34 of this title (relating to Texas Metals Program Recycler Training); [~~and~~]

(5) [~~(6)~~] A statutory agent disclosure pursuant to §36.12 of this title (relating to Statutory Agent Disclosure);[.]

(6) The physical address of the fixed location at which the applicant will conduct regulated metal recycling activities; and

(7) If the applicant's business activity involves catalytic converters removed from motor vehicles, a declaration on the approved department form stating:

(A) whether the applicant will engage in a business activity that involves the conversion of catalytic converters removed from motor vehicles into raw material products by a method that in part requires the use of powered tools and equipment or the use of such raw material products in the manufacture of producer or consumer goods;

(B) whether the applicant will purchase or otherwise acquire catalytic converters removed from motor vehicles for the eventual use of the metal for purposes of the aforementioned business activities but will not actually engage in those activities; or

(c) Applicants proposing to conduct business at more than one (1) location must complete an application for each location and obtain a certificate of registration for each location. An applicant proposing to conduct business at more than one (1) location is only required to comply with the requirement of subsection (b)(4) [~~subsection (b)(5)~~] of this section for the initial location at which the applicant is seeking to conduct business.

(d) A new certificate of registration for a metals recycling entity may not be issued if the applicant's immediate family member's registration as a metals recycling entity, at that same location, is currently suspended or revoked, or is subject to a pending administrative action, unless the applicant submits an affidavit stating the family member who is the subject of the suspension, revocation or pending action, has no, nor will have any, direct involvement or influence in the business of the metals recycling entity.

(e) A new certificate of registration may be issued at the same location where a previous owner's registration as a metals recycling entity is currently suspended, is subject to a pending administrative action, or was previously revoked, if the applicant submits an affidavit stating the previous owner who is the subject of the suspension, revocation, or other pending administrative action, will have no direct involvement or influence in the business of the metals recycling entity. The affidavit must contain the statement that the affiant understands and agrees that in the event the department discovers the previous registration holder is involved in the business of metals recycling entity at that location, the certificate of registration will be revoked pursuant to §36.53 of this title (relating to Revocation of a Certificate of Registration). In addition to the affidavit, when the change of ownership of the metals recycling entity is by lease of the location, the applicant seeking a certificate of registration must provide a copy of the lease agreement included with the application for certificate of registration.

(f) The failure of an applicant to meet any of the conditions of subsections (a) - (e) of this section will result in rejection of the application as incomplete.

(g) An applicant for a certificate of registration is not authorized to engage in any activity for which a certificate of registration is required prior to being issued a certificate of registration by the department.

(h) A metal recycling entity whose business activity substantially changes in the extent to which the entity engages in transactions involving catalytic converters removed from motor vehicles must update the entity's declaration at the time of or prior to the 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 October 25, 2023.

TRD-202303153

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2023

For further information, please call: (512) 424-5848

SUBCHAPTER E. DISCIPLINARY PROCEDURES AND ADMINISTRATIVE PROCEDURES

37 TAC §36.60

The Texas Department of Public Safety (the department) proposes amendments to §36.60, concerning Administrative Penalties. The proposed amendments remove obsolete language and modify the penalty schedule to reflect violations of the proposed amendments to rules §36.11 and §36.36, and Senate Bill 224, 88th Leg., R.S. (2023), amending the Metals Recycling Entities Act (Occupations Code, Chapter 1956).

Texas Government Code, §411.004(3) and Texas Occupations Code, §1956.013, are affected by this proposal.

§36.60.Administrative Penalties.

[(a) In addition to or in lieu of discipline imposed pursuant to §36.52 of this title (relating to Advisory Letters, Reprimands and Suspensions of a Certificate of Registration) the department may impose an administrative penalty on a person who violates this Chapter or Subchapter A-2 or Subchapter A-3 of the Act, or who engages in conduct that would constitute an offense under §1956.040(c-2) or (c-4) of the Act.]

(a) [~~(b)~~] The figure in this section reflects the department's penalty schedule applicable to administrative penalties imposed under this section. For any violation not expressly addressed in the penalty schedule, the department may impose a penalty not to exceed $500 for the first (1st) violation. For the second (2nd) violation within the preceding one (1) year period, the penalty may not exceed $1,000.

Figure: 37 TAC §36.60(a) (.pdf)

[~~Figure: 37 TAC §36.60(b)~~]

(b) [~~(c)~~] Upon receipt of a notice of administrative penalty under this section, a person may request a hearing before the department pursuant to §36.56 of this title (relating to Informal Hearing; Settlement Conference).

(c) [~~(d)~~] The failure to pay an administrative penalty that has become final, whether by the passage of the deadline to appeal or by final court disposition, whichever is later, shall result in suspension of the license with no further notice or right to appeal. The suspension takes effect when the appeal deadline has passed and remains in effect until the penalty is paid in full.

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 August 25, 2023.

TRD-202303154

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: October 8, 2023

For further information, please call: (512) 424-5848

PART 6. TEXAS DEPARTMENT OF CRIMINAL JUSTICE

CHAPTER 151. GENERAL PROVISIONS

37 TAC §151.54

The Texas Board of Criminal Justice (board) proposes new rule §151.54, Employee Training and Education - Tuition Reimbursement. The purpose of the new rule is to authorize reimbursement of training and education expenses consistent with Subchapters C and D, Chapter 656, Texas Government Code. The proposed rule has been reviewed by legal counsel and found to be within the board's authority to adopt.

Ron Steffa, Chief Financial Officer for the Texas Department of Criminal Justice, has determined that for each year of the first five years the proposed rule will be in effect, enforcing or administering the proposed rule will not have foreseeable implications related to costs or revenues for state or local government because the proposed rule will be administered using existing staffing and processes.

Mr. Steffa has also determined that for each year of the first five-year period, there will not be an economic impact on persons required to comply with the rules because the proposed rule does not require compliance by any persons. There will not be an adverse economic impact on small or micro businesses or on rural communities. Therefore, no regulatory flexibility analysis is required.

The anticipated public benefit, as a result of enforcing the proposed rule, will be to provide TDCJ employees an opportunity to qualify for reimbursement of training and education expenses. No cost will be imposed on regulated persons.

The proposed rule will have no impact on government growth; no impact on local employment; no creation or elimination of employee positions; no increase or decrease in future legislative appropriations to the TDCJ; no increase or decrease in fees paid to the TDCJ; no new regulation and no effect on an existing regulation; no increase or decrease in the number of individuals subject to the rule; and no effect upon the economy. The proposed rule will create a create a tuition reimbursement program consistent with Subchapters C and D, Chapter 656, Texas Government Code. The proposed rule will not constitute a taking.

Comments should be directed to the Office of the General Counsel, Texas Department of Criminal Justice, P.O. Box 4004, Huntsville, Texas 77342, ogccomments@tdcj.texas.gov. Written comments from the general public must be received within 30 days of the publication of this rule in the Texas Register.

The amendments are proposed under Texas Government Code §492.013, which authorizes the board to adopt rules; and Subchapters C and D, Chapter 656, Texas Government Code, which authorize the board to adopt rules for the training and education of TDCJ administrators and employees.

Cross Reference to Statutes: None.

§151.54.Employee Training and Education - Tuition Reimbursement.

(a) Purpose. The purpose of this rule is to authorize reimbursement of training and education expenses consistent with Subchapters C and D, Chapter 656, Texas Government Code.

(b) The Texas Department of Criminal Justice (TDCJ) shall adopt policies related to training and education for agency administrators and employees consistent with this rule and Subchapters C and D, Chapter 656, Texas Government Code.

(c) The policies may establish additional eligibility criteria for administrator and employee participation in training and education supported by the TDCJ as well as an explanation of the administrators' and employees' responsibilities and potential liabilities as participants.

(d) A TDCJ administrator or employee must be employed on a full-time basis and approved by their respective division director to be eligible for training and education supported by the TDCJ.

(e) A TDCJ administrator or employee must follow all applicable TDCJ policies adopted pursuant to this rule.

(f) Only the TDCJ executive director may authorize the tuition reimbursement payment of a TDCJ administrator or employee for a training or education program offered by an institution of higher education or private or independent institution of higher education as defined by Section 61.003, Education Code. The TDCJ may only reimburse the tuition expenses for a program course successfully completed by the administrator or employee at an institution of higher education accredited by a recognized accrediting agency as defined by Section 61.003, Education Code.

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 August 28, 2023.

TRD-202303178

Kristen Worman

General Counsel

Texas Department of Criminal Justice

Earliest possible date of adoption: October 8, 2023

For further information, please call: (936) 437-6700

CHAPTER 152. CORRECTIONAL INSTITUTIONS DIVISION

SUBCHAPTER A. MISSION AND ADMISSIONS

37 TAC §152.3

The Texas Board of Criminal Justice (board) proposes amendments to §152.3, concerning Admissions. The amendments are proposed in conjunction with a proposed rule review of §152.3 as published in another section of the Texas Register. The proposed amendments conform the rule to legislation from the 88th legislative session, HB 2620, relating to the confinement in a county jail of a person pending transfer to the Texas Department of Criminal Justice and to compensation to a county for certain costs of confinement. The proposed amendments have been reviewed by legal counsel and found to be within the board's authority to adopt.

Ron Steffa, Chief Financial Officer for the Texas Department of Criminal Justice, has determined that for each year of the first five years the proposed amendments will be in effect, enforcing or administering the proposed amendments will not have foreseeable implications related to costs or revenues for state or local government because the proposed amendments clarify that TDCJ shall accept inmates sentenced to prison within 45 days of the date commitment papers are certified, instead of sent, throughout the rule and establish procedures for that certification.

Mr. Steffa has also determined that for each year of the first five-year period, there will not be an economic impact on persons required to comply with the rules because the proposed amendments merely clarify that TDCCJ shall accept inmates sentenced to prison within 45 days of the date commitment papers are certified, instead of sent, throughout the rule and establish procedures for that certification. There will not be an adverse economic impact on small or micro businesses or on rural communities. Therefore, no regulatory flexibility analysis is required.

The anticipated public benefit, as a result of enforcing the proposed amendments, will be to provide clarity for when TDCJ will accept inmates sentenced to prison. No cost will be imposed on regulated persons.

The proposed amendments will have no impact on government growth; no impact on local employment; no creation or elimination of a government program; no creation or elimination of employee positions; no increase or decrease in future legislative appropriations to the TDCJ; no increase or decrease in fees paid to the TDCJ; no new regulation and no effect on an existing regulation; no increase or decrease in the number of individuals subject to the rule; and no effect upon the economy. The proposed amendments will not constitute a taking.

The amendments are proposed under Texas Government Code §492.013, which authorizes the board to adopt rules; § 499.071, which requires the board to adopt a scheduled admissions policy, and § 507.024, which requires the board to adopt rules to provide for the safe transfer of defendants from counties to state jail felony facilities.

Cross Reference to Statutes: None.

§152.3.Admissions.

(a) Counties will send commitment papers on inmates [ ~~offenders~~] sentenced to the Texas Department of Criminal Justice (TDCJ) to the TDCJ Classification and Records Office (CRO) immediately following completion of the commitment papers. Those counties equipped to do so may send paperwork electronically.

(b) The TDCJ shall accept inmates [~~offenders~~ ] sentenced to prison within 45 days of the date the commitment papers are certified by the CRO [~~sent~~]. [~~If sent by mail, the 45 days shall begin on the postmarked date.~~]

(c) Not later than the fifth business day after the date the CRO receives commitment papers from the county, the CRO shall:

(1) review and certify the commitment papers if the CRO determines there are no errors or deficiencies requiring corrective action by the county; or

(2) notify the county that the CRO has determined the commitment papers require corrective action by the county.

(d) [~~(c)~~]Inmates [~~Offenders~~ ] shall be scheduled for admission based on:

(1) their length of confinement in relation to the 45 days from the date the commitment papers are certified [~~sent~~]; and

(2) transportation routes.

(e) [~~(d)~~] Counties will inform the TDCJ State Ready Office when inmates [~~offenders~~] for whom commitment papers have been sent are transferred to another facility by bench warrants.

(f) [~~(e)~~] The TDCJ shall notify counties via electronic transmission, such as facsimile or email when applicable, of inmates [~~offenders~~] scheduled for intake, the date of intake, the respective reception unit, and transportation arrangements. Inmates [~~Offenders~~] shall be sorted by name and State Identification (SID) number, as identified by the court judgment.

(g) [~~(f)~~] Counties will notify the TDCJ admissions coordinator of any inmates [~~offenders~~ ] who are not available for transfer and the reason they are not available for transfer.

(h) [~~(g)~~] Counties may identify inmates [~~offenders~~] with medical or security issues that may be scheduled for intake out of sequence on a case-by-case basis by contacting the TDCJ admissions coordinator.

(i) [~~(h)~~] After the receipt of an order by a judge for admission of an inmate [~~offender~~] to a state jail, the placement determination shall be made by the TDCJ Admissions Office. Placement shall be made in the state jail designated as serving the county in which the inmate [~~offender~~ ] resides unless:

(1) the inmate [~~offender~~] has no residence or was a resident of another state at the time of committing an offense;

(2) alternative placement would protect the life or safety of any person;

(3) alternative placement would increase the likelihood of the inmate's [~~offender's~~] successful completion of confinement or supervision;

(4) alternative placement is necessary to efficiently use available state jail capacity, including alternative placement because of gender; or

(5) alternative placement is necessary to provide medical or psychiatric care to the inmate [~~offender~~].

(j) [~~(i)~~] If the inmate [~~offender~~] is described by subsection (i)(1) [~~(h)(1)~~ ] of this rule, placement shall be made in the state jail designated as serving the county in which the offense was committed, unless a circumstance in subsection (i)(2) - (5) [~~(h)(2) - (5)~~] of this rule applies.

(k) [~~(j)~~] The TDCJ Admissions Office shall attempt to have placement determinations made at a regional level that may include one or more regions as designated in 37 Texas Administrative Code §152.5 (relating to Designation of State Jail Regions).

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 August 28, 2023.

TRD-202303177

Kristen Worman

General Counsel

Texas Department of Criminal Justice

Earliest possible date of adoption: October 8, 2023

For further information, please call: (936) 437-6700

PART 13. TEXAS COMMISSION ON FIRE PROTECTION

CHAPTER 403. CRIMINAL CONVICTIONS AND ELIGIBILITY FOR CERTIFICATION

37 TAC §§403.3, 403.5, 403.15

The Texas Commission on Fire Protection (commission) proposes amendments to 37 Texas Administrative Code Chapter 403, Criminal Convictions and Eligibility for Certifications, §403.3, Scope, §403.5, Access to Criminal History Record Information, and §403.15, Report of Convictions by an Individual or a Department.

BACKGROUND AND PURPOSE

The purpose of the proposed amendments to the rule is to reflect grammatical corrections and change "fire department" to a "regulated entity" which better reflects the Commission’s regulatory authority.

FISCAL NOTE IMPACT ON STATE AND LOCAL GOVERNMENT

Michael Wisko, Agency Chief, has determined that for each year of the first five-year period, the proposed amendments are in effect, there will be no significant fiscal impact to state government or local governments because of enforcing or administering these amendments as proposed under Texas Government Code §2001.024(a)(4).

PUBLIC BENEFIT AND COST NOTE

Mr. Wisko has also determined under Texas Government Code §2001.024(a)(5) that for each year of the first five years the amendments are in effect the public benefit will be accurate, clear, and concise rules.

LOCAL ECONOMY IMPACT STATEMENT

There is no anticipated effect on the local economy for the first five years that the proposed amendments are in effect; therefore, no local employment impact statement is required under Texas Government Code §2001.022 and 2001.024(a)(6).

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

Mr. Wisko has determined there will be no impact on rural communities, small businesses, or micro-businesses because of implementing these amendments. Therefore, no economic impact statement or regulatory flexibility analysis, as provided by Texas Government Code §2006.002, is required.

GOVERNMENT GROWTH IMPACT STATEMENT

The agency has determined under Texas Government Code §2006.0221 that during the first five years the amendments are in effect:

(1) the rules will not create or eliminate a government program;

(2) the rules will not create or eliminate any existing employee positions;

(3) the rules will not require an increase or decrease in future legislative appropriation;

(4) the rules will not result in a decrease in fees paid to the agency;

(5) the rules will not create a new regulation;

(6) the rules will not expand a regulation;

(7) the rules will not increase the number of individuals subject to the rule; and

(8) the rules are not anticipated to have an adverse impact on the state's economy.

TAKINGS IMPACT ASSESSMENT

The commission has determined that no private real property interests are affected by this proposal and this proposal does 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, this proposal does not constitute a taking or require a takings impact assessment under Texas Government Code §2007.043.

COSTS TO REGULATED PERSONS

The proposed amendments do not impose a cost on regulated persons, including another state agency, a special district, or a local government, and, therefore, are not subject to Texas Government Code §2001.0045.

ENVIRONMENTAL IMPACT STATEMENT

The commission has determined that the proposed amendments do not require an environmental impact analysis because the amendments are not major environmental rules under Texas Government Code §2001.0225.

REQUEST FOR PUBLIC COMMENT

Comments regarding the proposed amendments may be submitted, in writing, within 30 days following the publication of this notice in the Texas Register, to Michael Wisko, Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768, or e-mailed to amanda.khan@tcfp.texas.gov.

STATUTORY AUTHORITY

The amended rules are proposed under Texas Government Code §419.008, which authorizes the commission to adopt or amend rules to perform the duties assigned to the commission. The rules are also proposed under Texas Government Code §419.032, which authorizes the commission to adopt rules establishing the requirements for certification; and §419.036, which authorizes the commission to adopt rules establishing the requirements for certification.

CROSS-REFERENCE TO STATUTE

No other statutes, articles, or codes are affected by these amendments.

§403.3.Scope.

(a) The policy and procedures established in this chapter apply to a person who holds or applies for any certificate issued under the commission's regulatory authority contained in Government Code, Chapter 419.

(b) When a person is convicted of a crime of a sexual nature, the conviction of which would require the individual to be registered as a sex offender under Chapter 62 of the Code of Criminal Procedure; or

(c) When a person is convicted of a crime that is an offense under Title 7 of the Texas Penal Code, or a similar offense under the laws of the United States of America, another state, or another [~~other~~] jurisdiction, the person's conduct directly relates to the competency and reliability of the person to assume and discharge the responsibilities of fire protection personnel. Such conduct includes, but is not limited to, intentional or knowing conduct, without a legal privilege, which [~~that~~] causes or is intended to cause a fire or explosion with the intent to injure or kill any person or animal or to destroy or damage any property. The commission may:

(1) deny a person the opportunity to be examined for a certificate;

(2) deny the application for a certificate;

(3) grant the application for a new certificate with the condition that a probated suspension be placed on the newly granted certificate;

(4) refuse to renew a certificate;

(5) suspend, revoke, or probate the suspension or revocation of an existing certificate; or

(6) limit the terms or practice of a certificate holder to areas prescribed by the commission.

(d) When a person's criminal conviction of a felony or misdemeanor directly relates to the duties and responsibilities of the holder of a certificate issued by the commission, the commission may:

(1) deny a person the opportunity to be examined for a certificate;

(2) deny the application for a certificate;

(3) grant the application for a new certificate with the condition that a probated suspension be placed on the newly granted certificate;

(4) refuse to renew a certificate;

(5) suspend, revoke, or probate the suspension or revocation of an existing certificate; or

(6) limit the terms or practice of a certificate holder to areas prescribed by the commission.

§403.5.Access to Criminal History Record Information.

(a) Criminal history record. The commission is entitled to obtain criminal history record information maintained by the Department of Public Safety, or another law enforcement agency to investigate the eligibility of a person applying to the commission for or holding a certificate.

(b) Confidentiality of information. All information received under this section is confidential and may not be released to any person outside the agency except in the following instances:

(1) a court order;

(2) with written consent of the person being investigated;

(3) in a criminal proceeding; or

(4) in a hearing conducted under the authority of the commission.

(c) Early review. A regulated entity [~~fire department~~] that employs a person regulated by the commission, a person seeking to apply for a beginning position with a regulated entity, a volunteer fire department, or an individual participating in the commission certification program may seek the early review under this chapter of the person's present fitness to be certified. Prior to completing the requirements for certification, the individual may request such a review in writing by following the required procedure. A decision by the commission based on an early review does not bind the commission if there is a change in circumstances. The following pertains to early reviews:

(1) The commission will complete its review and notify the requestor in writing concerning potential eligibility or ineligibility within 90 days following receipt of all required and necessary information for the review.

(2) A notification by the commission regarding the results of an early review is not a guarantee of certification, admission to any training program, or employment with a local government.

(3) A fee assessed by the commission for conducting an early review will be in an amount sufficient to cover the cost of conducting [~~to conduct~~] the review process, as provided in §437.19 of this title (relating to Early Review Fees).

(4) An early review request will be considered incomplete until the requestor submits all required and necessary information. Early review requests that remain incomplete for 90 days following receipt of the initial request will expire. If the request expires and an early review is still desired, a new request and fee must be submitted.

§403.15.Report of Convictions by an Individual or a Department.

(a) A certificate holder must report to the commission, any conviction, other than a minor traffic offense (Class C misdemeanor) under the laws of this state, another state, the United States, or a foreign country, within 14 days of the conviction date.

(b) A regulated entity [~~fire department~~] or local government entity shall report to the commission, any conviction of a certificate holder other than a minor traffic offense (class C misdemeanor) under the laws of this state, another state, the United States, or foreign country, that it has knowledge of, within 14 days of the conviction date.

(c) A certificate holder is subject to suspension, revocation, or denial of any or all certifications for violation of the requirements of subsection (a) of this section. Each day may be considered a separate offense.

(d) A regulated entity [~~fire department~~] or government entity regulated by the commission violating subsection (b) of this section may be subject to administrative penalties of up to $500. Each day may be considered a separate offense.

(e) Notification may be made by mail, e-mail, or in-person [~~in person~~] to the Texas Commission on Fire Protection (TCFP) Austin office. TCFP Form #014 shall be used.

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 August 24, 2023.

TRD-202303142

Mike Wisko

Agency Chief

Texas Commission on Fire Protection

Earliest possible date of adoption: October 8, 2023

For further information, please call: (512) 936-3841

CHAPTER 439. EXAMINATOINS FOR CERTIFICATION

SUBCHAPTER A. EXAMINATIONS FOR ON-SITE DELIVERY TRAINING

37 TAC §439.19

The Texas Commission on Fire Protection (commission) proposes amendments to 37 Texas Administrative Code Chapter 439, Examinations for Certifications, §439.19, Number of Test Questions.

BACKGROUND AND PURPOSE

The purpose of the proposed amendments to the rule is to reflect changes to the number of test questions, number of pilot questions, and allotted time for testing for each of the certification testing sections.

FISCAL NOTE IMPACT ON STATE AND LOCAL GOVERNMENT

PUBLIC BENEFIT AND COST NOTE

LOCAL ECONOMY IMPACT STATEMENT

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

GOVERNMENT GROWTH IMPACT STATEMENT

The agency has determined under Texas Government Code §2006.0221 that during the first five years the amendments are in effect:

(1) the rules will not create or eliminate a government program;

(2) the rules will not create or eliminate any existing employee positions;

(3) the rules will not require an increase or decrease in future legislative appropriation;

(4) the rules will not result in a decrease in fees paid to the agency;

(5) the rules will not create a new regulation;

(6) the rules will not expand a regulation;

(7) the rules will not increase the number of individuals subject to the rule; and

(8) the rules are not anticipated to have an adverse impact on the state's economy.

TAKINGS IMPACT ASSESSMENT

COSTS TO REGULATED PERSONS

ENVIRONMENTAL IMPACT STATEMENT

REQUEST FOR PUBLIC COMMENT

STATUTORY AUTHORITY

The amended rule is proposed under Texas Government Code §419.008, which authorizes the commission to adopt or amend rules to perform the duties assigned to the commission. The rule is also proposed under Texas Government Code §419.032, which authorizes the commission to adopt rules establishing the requirements for certification; and §419.036, which authorizes the commission to adopt rules establishing the requirements for certification.

CROSS-REFERENCE TO STATUTE

No other statutes, articles, or codes are affected by these amendments.

§439.19.Number of Test Questions.

(a) Each examination may have two types of questions: pilot and active. Pilot questions are new questions placed on the examination for statistical purposes only. These questions do not count against an examinee if answered incorrectly. The maximum possible number of pilot questions will be 10% of the number of exam questions, rounded up.

(b) The number of questions on an examination, sectional examination, or retest will be based upon the specific examination, or number of recommended hours for a particular curriculum or section as shown in the table below. Any pilot questions added to an examination, sectional examination, or retest will be in addition to the number of exam questions.

Figure: 37 TAC §439.19(b) (.pdf)

[~~Figure: 37 TAC §439.19(b)~~]

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 August 23, 2023.

TRD-202303124

Mike Wisko

Agency Chief

Texas Commission on Fire Protection

Earliest possible date of adoption: October 8, 2023

For further information, please call: (512) 936-3841