Volume 45 Number 21 May 22, 2020 Pages 3389 - 3544 · to expire January 31, 2021, James M. Mosley of Borger, Texas (replac-ing Anahid E. "Ana" Estevez of Amarillo, whose term expired)

Volume 45 Number 21 May 22, 2020 Pages 3389 - 3544

a section of the Office of the Secretary of State

P.O. Box 12887 Austin, Texas 78711

(512) 463-5561 FAX (512) 463-5569

https://www.sos.texas.gov [email protected]

Texas Register, (ISSN 0362-4781, USPS 12-0090), is published weekly (52 times per year) for $340.00 ($502.00 for first class mail delivery) by Matthew Bender & Co., Inc., 3 Lear Jet Lane Suite 104, P. O. Box 1710, Latham, NY 12110.

Material in the Texas Register is the property of the State of Texas. However, it may be copied, reproduced, or republished by any person without permission of the Texas Register director, provided no such republication shall bear the legend Texas Register or "Official" without the written permission of the director.

The Texas Register is published under the Government Code, Title 10, Chapter 2002. Periodicals Postage Paid at Easton, MD and at additional mailing offices.

POSTMASTER: Send address changes to the Texas Register, 4810 Williamsburg Road, Unit 2, Hurlock, MD 21643.

Secretary of State - Ruth R. Hughs Editors Liz Cordell Director - Robert Sumners Eddie Feng Belinda Kirk

Cecilia Mena Editor-in-Chief - Jill S. Ledbetter Joy L. Morgan Breanna Mutschler

Barbara Strickland

mailto:[email protected]://www.sos.texas.gov

GOVERNOR Appointments.................................................................................3395

Proclamation 41-3732....................................................................3395

Proclamation 41-3733....................................................................3396

Proclamation 41-3734....................................................................3397

Proclamation 41-3735....................................................................3397

ATTORNEY GENERAL Requests for Opinions....................................................................3399

Opinions.........................................................................................3399

EMERGENCY RULES DEPARTMENT OF STATE HEALTH SERVICES

STANDARD OF CARE 25 TAC §448.911 ...........................................................................3403

PROPOSED RULES CREDIT UNION DEPARTMENT

CHARTERING, OPERATIONS, MERGERS, LIQUIDATIONS 7 TAC §91.708...............................................................................3405

STATE PRESERVATION BOARD RULES AND REGULATIONS OF THE BOARD

13 TAC §111.13 .............................................................................3406

TEXAS DEPARTMENT OF LICENSING AND REGULATION

MOTOR FUEL METERING AND QUALITY 16 TAC §§97.1 - 97.3 ....................................................................3412

16 TAC §§97.20 - 97.28 ................................................................3414

16 TAC §§97.40 - 97.43 ................................................................3415

16 TAC §§97.50 - 97.60 ................................................................3416

16 TAC §§97.70 - 97.74 ................................................................3417

16 TAC §97.80...............................................................................3418

TEXAS EDUCATION AGENCY PLANNING AND ACCOUNTABILITY

19 TAC §97.1005...........................................................................3418

BUDGETING, ACCOUNTING, AND AUDITING 19 TAC §109.23.............................................................................3422

TEXAS BOARD OF ARCHITECTURAL EXAMINERS REGISTERED INTERIOR DESIGNERS

22 TAC §5.183...............................................................................3423

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CONTROL OF AIR POLLUTION FROM VISIBLE EMISSIONS AND PARTICULATE MATTER 30 TAC §111.209 ...........................................................................3425

COMPTROLLER OF PUBLIC ACCOUNTS STATEWIDE PROCUREMENT AND SUPPORT

SERVICES 34 TAC §20.25...............................................................................3429

34 TAC §20.81...............................................................................3433

WITHDRAWN RULES TEXAS HISTORICAL COMMISSION

HISTORIC SITES 13 TAC §16.3.................................................................................3435

TEXAS MEDICAL BOARD MEDICAL RECORDS

22 TAC §165.7...............................................................................3435

STANDING DELEGATION ORDERS 22 TAC §§193.5, 193.13, 193.17, 193.21......................................3435

TEXAS DEPARTMENT OF INSURANCE PROPERTY AND CASUALTY INSURANCE

28 TAC §5.9502.............................................................................3435


COAL COMBUSTION RESIDUALS WASTE MANAGEMENT 30 TAC §352.291...........................................................................3435

30 TAC §352.1401.........................................................................3436

ADOPTED RULES CREDIT UNION DEPARTMENT

CHARTERING, OPERATIONS, MERGERS, LIQUIDATIONS 7 TAC §91.1003.............................................................................3437

7 TAC §91.6001.............................................................................3437

7 TAC §91.6003.............................................................................3437

7 TAC §91.6004.............................................................................3438

7 TAC §91.6006.............................................................................3438

7 TAC §91.6010.............................................................................3438

7 TAC §91.6014.............................................................................3438

TEXAS EDUCATION AGENCY STATE ADOPTION AND DISTRIBUTION OF

INSTRUCTIONAL MATERIALS 19 TAC §66.1403...........................................................................3439

TABLE OF CONTENTS 45 TexReg 3391

ASSESSMENT 19 TAC §101.1003.........................................................................3439

STUDENT ATTENDANCE 19 TAC §129.1049.........................................................................3440


PUBLIC NOTICE 30 TAC §39.651.............................................................................3441

GENERAL AIR QUALITY RULES 30 TAC §101.601...........................................................................3442

APPLICATIONS PROCESSING 30 TAC §281.19.............................................................................3445

WATER RIGHTS, PROCEDURAL 30 TAC §295.158...........................................................................3448

WATER RIGHTS, SUBSTANTIVE 30 TAC §297.1...............................................................................3456

30 TAC §§297.41 - 297.43 ............................................................3457

UNDERGROUND INJECTION CONTROL 30 TAC §§331.2, 331.7, 331.9.......................................................3461

30 TAC §331.131...........................................................................3461

30 TAC §§331.262 - 331.267 ........................................................3461

UNDERGROUND INJECTION CONTROL 30 TAC §331.19.............................................................................3462

COAL COMBUSTION RESIDUALS WASTE MANAGEMENT 30 TAC §§352.1 - 352.6 ................................................................3492

30 TAC §§352.101, 352.111, 352.121, 352.131, 352.141 .............3493

30 TAC §§352.201, 352.211, 352.221, 352.231, 352.241, 352.251, 352.261, 352.271, 352.281, 352.301, 352.311...............................3493

30 TAC §§352.401, 352.411, 352.421, 352.431, 352.441, 352.451, 352.461, 352.471, 352.481 ............................................................3494

30 TAC §§352.601, 352.611, 352.621, 352.631, 352.641 .............3494

30 TAC §§352.701, 352.711, 352.721, 352.731, 352.741 .............3495

30 TAC §§352.801, 352.811, 352.821, 352.831, 352.841, 352.851 ..........................................................................................3495

30 TAC §§352.901, 352.902, 352.911, 352.931, 352.941, 352.951, 352.961, 352.971, 352.981, 352.991 .............................................3496

30 TAC §352.1101, §352.1111 ......................................................3497

30 TAC §§352.1200, 352.1201, 352.1211, 352.1221, 352.1231, 352.1241 ........................................................................................3497

30 TAC §§352.1301, 352.1311, 352.1321 .....................................3498

30 TAC §352.1421, §352.1431......................................................3499

COMPTROLLER OF PUBLIC ACCOUNTS TAX ADMINISTRATION

34 TAC §3.334...............................................................................3499

PROPERTY TAX ADMINISTRATION 34 TAC §9.103...............................................................................3518

34 TAC §9.103...............................................................................3518

RULE REVIEW Proposed Rule Reviews Department of Information Resources...........................................3523

Texas Board of Physical Therapy Examiners ................................3523

Adopted Rule Reviews Department of Information Resources...........................................3523

Credit Union Department...............................................................3524

IN ADDITION Department of Aging and Disability Services Correction of Error.........................................................................3525

Office of the Attorney General Texas Health and Safety Code and Texas Water Code Settlement No-tice..................................................................................................3525

State Bar of Texas Committee on Disciplinary Rules and Referenda Proposed Rule Changes: Rule 13.05, Texas Rules of Disciplinary Procedure ......3525

Office of Consumer Credit Commissioner Notice of Rate Ceilings..................................................................3528

Court of Criminal Appeals Availability of Grant Funds ...........................................................3528

Texas Education Agency Correction of Error.........................................................................3529

Notice of Correction: Request for Applications (RFA) Concerning the 2020-2021 School Action Fund - Implementation Grant Program 3529

Notice of Correction: Request for Applications (RFA) Concerning the 2020-2021 School Action Fund - Planning Grant Program...........3529

Texas Commission on Environmental Quality Agreed Orders................................................................................3529

Amended Notice of Application and Public Hearing for an Air Quality Standard Permit for a Concrete Batch Plant With Enhanced Controls: Proposed Air Quality Registration Number 159751......................3532

Amended Notice of Application and Public Hearing for an Air Quality Standard Permit for a Concrete Batch Plant With Enhanced Controls: Proposed Air Quality Registration Number 159968......................3533

Correction of Error.........................................................................3534

Notice of Opportunity to Comment on a Shutdown/Default Order of an Administrative Enforcement Action ..............................................3534


Notice of Opportunity to Comment on Agreed Orders of Administra-tive Enforcement Actions ..............................................................3535

Notice of Opportunity to Comment on Default Orders of Administra-tive Enforcement Actions ..............................................................3536

Notice of Opportunity to Comment on Settlement of Environmental Claims under the Texas Health and Safety Code...........................3536

Notice of Public Hearing on Assessment of Administrative Penalties and Requiring Certain Actions of SHRISHUBH, LLC Dba Super Food Mart: SOAH Docket No. 582-20-3433; TCEQ Docket No. 2017-0898-PST-E ...................................................................................3537

Notice of Public Hearing on Assessment of Administrative Penalties and Requiring Certain Actions of Star Container Company Inc.: SOAH Docket No. 582-20-3374; TCEQ Docket No. 2019-0679-IHW-E 3538

Notice of Public Hearing on Proposed Revisions to 30 TAC Chapter 111 and to the State Implementation Plan......................................3538

Notice of Water Quality Application .............................................3539

Second Amended Notice of Hearing (to Change Hearing Date and Lo-cation) Lealco, Inc.: SOAH Docket No. 582-20-2399; TCEQ Docket No. 2018-1759-MSW; Proposed Permit No. 2398 .......................3539

Texas Ethics Commission

List of Late Filers ..........................................................................3540

General Land Office Notice and Opportunity to Comment on the Coastal Management Pro-gram Section 309 Assessment and Strategies Draft Report...........3540

Texas Department of Housing and Community Affairs Notice and Confirmation of Virtual Public Hearings on the Draft 2021 Low Income Home Energy Assistance Program State Plan..........3541

Texas State Library and Archives Commission Correction of Error.........................................................................3542

Panhandle Regional Planning Commission Legal Notice...................................................................................3542

Texas Water Development Board Applications April 2020.................................................................3543

Workforce Solutions for the Heart of Texas Request for Proposal (RFP #13200102) Operation and Management of the Heart of Texas Workforce Center System................................3543


♦ ♦ ♦ Appointments Appointments for May 11, 2020

Appointed to the Crime Victims' Institute Advisory Council, for a term to expire January 31, 2021, James M. Mosley of Borger, Texas (replac-ing Anahid E. "Ana" Estevez of Amarillo, whose term expired).

Appointed to the Crime Victims' Institute Advisory Council, for a term to expire January 31, 2022, Matthew L. "Matt" Ferrara, Ph.D. of Austin, Texas (Dr. Ferrara is being reappointed).

Appointed to the Crime Victims' Institute Advisory Council, for a term to expire January 31, 2022, Michael S. "Shawn" Kennington of Pitts-burg, Texas (Mr. Kennington is being reappointed).

Appointed to the Crime Victims' Institute Advisory Council, for a term to expire January 31, 2022, Lindsay M. Kinzie of Fort Worth, Texas (replacing Jeffrey L. "Jeff" Oldham of Austin, whose term expired).

Appointed to the Crime Victims' Institute Advisory Council, for a term to expire January 31, 2022, Eugene P. "Gene" Pack of Houston, Texas (Mr. Pack is being reappointed).

Appointed to the Crime Victims' Institute Advisory Council, for a term to expire January 31, 2022, Jeffery D. "JD" Robertson of Wimberley, Texas (Major Robertson is being reappointed).

Appointed to the Crime Victims' Institute Advisory Council, for a term to expire January 31, 2022, Andrea Sparks of Austin, Texas (Ms. Sparks is being reappointed).

Appointed to the Crime Victims' Institute Advisory Council, for a term to expire January 31, 2022, Hector L. Villarreal of Alice, Texas (Mr. Villarreal is being reappointed).

Appointed to the Governing Board of the Texas Indigent Defense Commission, for a term to expire February 1, 2022, Valerie Covey of Georgetown, Texas (Ms. Covey is being reappointed).

Appointed to the Governing Board of the Texas Indigent Defense Com-mission, for a term to expire February 1, 2022, Richard A. Evans of Bandera, Texas (Mr. Evans is being reappointed).

Appointed to the Governing Board of the Texas Indigent Defense Commission, for a term to expire February 1, 2022, Mary K. "Missy" Medary of Corpus Christi, Texas (Ms. Medary is being reappointed).

Appointed as presiding officer of the Hidalgo County Regional Mobil-ity Authority, for a term to expire February 1, 2022, Samuel D. "David" Deanda, Jr. of Mission, Texas (Mr. Deanda is being reappointed).

Appointed to the State Board for Educator Certification, for a term to expire February 1, 2025, Julia F. Moore of Pflugerville, Texas (replac-ing Laurie Kuper Bricker of Houston, whose term expired).

Appointed to the State Board for Educator Certification, for a term to expire February 1, 2025, Wanda H. "Jean" Streepey of Dallas, Texas (replacing Jill H. Druesedow of Haskell, whose term expired).

Greg Abbott, Governor TRD-202001867

Proclamation 41-3732 TO ALL TO WHOM THESE PRESENTS SHALL COME:

WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.014 of the Texas Government Code that the novel coronavirus (COVID-19) poses an imminent threat of disaster for all counties in the State of Texas; and

WHEREAS, on April 12, 2020, I issued a proclamation renewing the disaster declaration for all counties in Texas; and

WHEREAS, the Commissioner of the Texas Department of State Health Services (DSHS), Dr. John Hellerstedt, has determined that COVID-19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code, and renewed that determination on April 17, 2020; and

WHEREAS, the Governor has issued executive orders and suspensions of Texas laws in response to COVID-19, aimed at protecting the health and safety of Texans and ensuring an effective response to this disaster; and

WHEREAS, Section 41.001(a)(2) of the Texas Election Code provides that a general or special election in this state shall be held on a uniform election date, and the next uniform election date is occurring on May 2, 2020; and

WHEREAS, on March 18, 2020, the Governor suspended Sections 41.0052(a) and (b) of the Texas Election Code and Section 49.103 of the Texas Water Code to the extent necessary to allow political subdi-visions that would otherwise hold elections on May 2, 2020, to move their general and special elections for 2020 only to the next uniform election date, occurring on November 3, 2020; and

WHEREAS, on March 20, 2020, the Governor issued a proclamation postponing the runoff primary election date to July 14, 2020, in re-sponse to the COVID-19 disaster, and early voting by personal appear-ance for the runoff primary election begins on July 6, 2020, in accor-dance with Section 85.001(b) of the Texas Election Code; and

WHEREAS, Section 41.007(d) of the Texas Election Code provides that no other election may be held on the date of a primary election; and

WHEREAS, Section 41.008 of the Texas Election Code provides that an election held on a date not permitted is void; and

WHEREAS, Section 85.001(a) of the Texas Election Code provides that the period for early voting by personal appearance begins on the 17th day before election day and continues through the fourth day be-fore election day; and

WHEREAS, Texas law provides that the Midland County Hospital Dis-trict may hold an election on the question of whether to adopt, change the rate of, or abolish a program to sustain the district on a uniform

GOVERNOR May 22, 2020 45 TexReg 3395

election date as authorized by Section 41.001(a) of the Texas Election Code; and

WHEREAS, the Midland County Hospital District ordered a special election on the question of whether to adopt a program to sustain the district, and such election was scheduled for May 2, 2020; and

WHEREAS, Section 41.0011 of the Texas Election Code provides that a special election may be held as an emergency election before the ap-propriate uniform election date if a political subdivision asks the Gov-ernor for permission to do so and the Governor determines that an emer-gency exists; and

WHEREAS, the Midland County Hospital District desires to order a special election as an emergency election on the question of whether to adopt a program to sustain the district pursuant to Section 41.0011 of the Texas Election Code because holding this election at a later date would result in dire consequences for the community, including threat-ening the district's ability to provide adequate health care to patients in response to the COVID-19 disaster; and

WHEREAS, the Midland County Hospital District has asked the Gov-ernor for permission to hold an election on the question of whether to adopt a program to sustain the district prior to November 3, 2020; and

WHEREAS, an emergency exists under Section 41.0011 of the Texas Election Code due to the circumstances presented by the COVID-19 disaster and because the Midland County Hospital District is not able to wait until November 3, 2020, to hold a special election to adopt a program to sustain the district; and

WHEREAS, pursuant to Section 418.016 of the Texas Government Code, the Governor has the express authority to suspend the provi-sions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict com-pliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.

NOW, THEREFORE, I, Greg Abbott, Governor of Texas, under the au-thority vested in me by the Constitution and laws of the State of Texas, do hereby suspend Sections 41.007(d) and 41.008 of the Texas Elec-tion Code to the extent necessary to allow the Midland County Hospi-tal District to order its special election to occur on July 14, 2020, as an emergency election on the question of whether to adopt a program to sustain the district pursuant to Section 41.0011(b) of the Texas Election Code. I further suspend Section 85.001(a) of the Texas Election Code to the extent necessary to allow early voting by personal appearance for the special election to begin not earlier than Monday, July 6, 2020, and to run concurrently with the early voting period for the runoff primary election.

The authority ordering the election under Section 3.004 of the Texas Election Code is the authority authorized to make the decision to post-pone its election in accordance with this proclamation.

Early voting by personal appearance shall begin on Monday, July 6, 2020, in accordance with Section 85.001(d) of the Texas Election Code so that it runs concurrently with the early voting period for the runoff primary election.

IN TESTIMONY WHEREOF, I have hereto signed my name and have officially caused the Seal of State to be affixed at my office in the City of Austin, Texas, this the 8th day of May, 2020.


♦ ♦ ♦ Proclamation 41-3733

TO ALL TO WHOM THESE PRESENTS SHALL COME:


WHEREAS, on April 12, 2020, I issued a proclamation renewing the disaster declaration for all counties in Texas; and

WHEREAS, the Commissioner of the Texas Department of State Health Services (DSHS), Dr. John Hellerstedt, has determined that COVID-19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code, and renewed that determination on April 17, 2020; and

WHEREAS, I have issued executive orders, proclamations, and sus-pensions of Texas laws in response to the COVID-19 disaster, aimed at protecting the health and safety of Texans and ensuring an effective response to this disaster; and

WHEREAS, I issued a proclamation on March 16, 2020, ordering a special election on July 14, 2020, to fill the vacancy in Texas State Senate District No. 14; and

WHEREAS, on March 20, 2020, I issued a proclamation postponing the runoff primary election date from May 26, 2020, to July 14, 2020; and

WHEREAS, I also issued a proclamation suspending Sections 41.0052(a) and (b) of the Texas Election Code and Section 49.103 of the Texas Water Code to the extent necessary to allow political subdivisions that would otherwise hold elections on May 2, 2020, to move their general and special elections for 2020 only to the next uniform election date, occurring on November 3, 2020; and

WHEREAS, I subsequently issued proclamations on April 2, April 6, April 8, and May 8, 2020, authorizing certain political subdivisions to call emergency special elections on July 14, 2020; and

WHEREAS, Texas law provides that eligible voters have a right to cast a vote in person; and

WHEREAS, as counties across Texas prepare for the upcoming elec-tions on July 14, 2020, and establish procedures for eligible voters to exercise their right to vote in person, it is necessary that election of-ficials implement health protocols to conduct elections safely and to protect election workers and voters; and

WHEREAS, in order to ensure that elections proceed efficiently and safely when Texans go to the polls to cast a vote in person during early voting or on election day, it is necessary to increase the number of days in which polling locations will be open during the early voting period, such that election officials can implement appropriate social distancing and safe hygiene practices; and

WHEREAS, Section 85.001(a) of the Texas Election Code provides that the period for early voting by personal appearance begins 17 days before election day; and

WHEREAS, Section 85.001(b) of the Texas Election Code provides that the period for early voting for a runoff primary election begins 10 days before election day; and

WHEREAS, in consultation with the Texas Secretary of State, it has become apparent that strict compliance with the statutory requirements relating to the duration of early voting contained in Sections 85.001(a) and 85.001(b) of the Texas Election Code would prevent, hinder, or delay necessary action in coping with the COVID-19 disaster; and

45 TexReg 3396 May 22, 2020 Texas Register

WHEREAS, pursuant to Section 418.016 of the Texas Government Code, the Governor has the express authority to suspend the provi-sions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict com-pliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.

NOW, THEREFORE, I, Greg Abbott, Governor of Texas, under the au-thority vested in me by the Constitution and laws of the State of Texas, do hereby suspend Sections 85.001(a) and 85.001(b) of the Texas Elec-tion Code to the extent necessary to require that, for any election or-dered or authorized to occur on July 14, 2020, early voting by personal appearance shall begin on Monday, June 29, 2020, and shall continue through the fourth day before election day, excluding any legal state or federal holidays. I further amend the proclamations issued on April 2, April 6, April 8, and May 8, 2020, authorizing emergency special elections, and the proclamation issued on March 16, 2020, ordering a special election to fill the vacancy in Texas State Senate District No. 14, so as to require that for each of these elections to be held on July 14, 2020, early voting by personal appearance shall begin on Monday, June 29, 2020, in accordance with the above suspension.

The Secretary of State shall take notice of this proclamation and shall transmit a copy of this order immediately to every County Judge of this state and all appropriate writs will be issued and all proper proceedings will be followed to the end that said elections may be held and their results proclaimed in accordance with law.

IN TESTIMONY WHEREOF, I have hereto signed my name and have officially caused the Seal of State to be affixed at my office in the City of Austin, Texas, this the 11th day of May, 2020.


♦ ♦ ♦ Proclamation 41-3734 TO ALL TO WHOM THESE PRESENTS SHALL COME:


WHEREAS, the Commissioner of the Texas Department of State Health Services, Dr. John Hellerstedt, has determined that COVID-19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code; and

WHEREAS, I have issued executive orders and suspensions of Texas laws in response to COVID-19, aimed at protecting the health and safety of Texans and ensuring an effective response to this disaster; and

WHEREAS, on April 12, 2020, I issued a proclamation renewing the disaster declaration for all Texas counties; and

WHEREAS, a state of disaster continues to exist in all counties due to COVID-19;

NOW, THEREFORE, in accordance with the authority vested in me by Section 418.014 of the Texas Government Code, I do hereby renew the disaster proclamation for all counties in Texas.

Pursuant to Section 418.017, I authorize the use of all available re-sources of state government and of political subdivisions that are rea-sonably necessary to cope with this disaster.

Pursuant to Section 418.016, any regulatory statute prescribing the pro-cedures for conduct of state business or any order or rule of a state agency that would in any way prevent, hinder, or delay necessary action in coping with this disaster shall be suspended upon written approval of the Office of the Governor. However, to the extent that the enforce-ment of any state statute or administrative rule regarding contracting or procurement would impede any state agency's emergency response that is necessary to cope with this declared disaster, I hereby suspend such statutes and rules for the duration of this declared disaster for that limited purpose.

In accordance with the statutory requirements, copies of this proclama-tion shall be filed with the applicable authorities.

IN TESTIMONY WHEREOF, I have hereunto signed my name and have officially caused the Seal of State to be affixed at my office in the City of Austin, Texas, this the 12th day of May, 2020.


♦ ♦ ♦ Proclamation 41-3735 TO ALL TO WHOM THESE PRESENTS SHALL COME:

WHEREAS, I, Greg Abbott, Governor of the State of Texas, issued a disaster proclamation on August 23, 2017, certifying that Hurricane Harvey posed a threat of imminent disaster for Aransas, Austin, Bee, Brazoria, Calhoun, Chambers, Colorado, DeWitt, Fayette, Fort Bend, Galveston, Goliad, Gonzales, Harris, Jackson, Jefferson, Jim Wells, Karnes, Kleberg, Lavaca, Liberty, Live Oak, Matagorda, Nueces, Refugio, San Patricio, Victoria, Waller, Wharton, and Wilson counties; and

WHEREAS, the disaster proclamation of August 23, 2017, was subse-quently amended on August 26, August 27, August 28, and September 14 to add the following counties to the disaster proclamation: Angelina, Atascosa, Bastrop, Bexar, Brazos, Burleson, Caldwell, Cameron, Co-mal, Grimes, Guadalupe, Hardin, Jasper, Kerr, Lee, Leon, Madison, Milam, Montgomery, Newton, Orange, Polk, Sabine, San Augustine, San Jacinto, Trinity, Tyler, Walker, Washington, and Willacy; and

WHEREAS, on September 20, 2017, and in each subsequent month effective through today, I issued proclamations renewing the disaster declaration for all counties listed above; and

WHEREAS, due to the catastrophic damage caused by Hurricane Har-vey, a state of disaster continues to exist in those same counties;

NOW, THEREFORE, in accordance with the authority vested in me by Section 418.014 of the Texas Government Code, I do hereby renew the disaster proclamation for the 60 counties listed above.

Pursuant to Section 418.017 of the code, I authorize the use of all avail-able resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster.

Pursuant to Section 418.016 of the code, any regulatory statute pre-scribing the procedures for conduct of state business or any order or rule of a state agency that would in any way prevent, hinder, or delay necessary action in coping with this disaster shall be suspended upon written approval of the Office of the Governor. However, to the ex-tent that the enforcement of any state statute or administrative rule re-garding contracting or procurement would impede any state agency's emergency response that is necessary to protect life or property threat-ened by this declared disaster, I hereby authorize the suspension of such statutes and rules for the duration of this declared disaster.

GOVERNOR May 22, 2020 45 TexReg 3397

♦ ♦ ♦

In accordance with the statutory requirements, copies of this proclama-tion shall be filed with the applicable authorities.

IN TESTIMONY WHEREOF, I have hereunto signed my name and have officially caused the Seal of State to be affixed at my office in the City of Austin, Texas, this the 12th day of May, 2020.



Requests for Opinions RQ-0353-KP

Requestor:

Mr. Rakesh Pandey

Montgomery County Auditor

501 North Thompson, Suite 205

Conroe, Texas 77301

Re: Calculation of the minimum salary of a county court at law judge with twelve or more years of accrued service under section 25.0005(a) of the Government Code (RQ-0353-KP)

Briefs requested by June 5, 2020

For further information, please access the website at www.texasattor-neygeneral.gov or call the Opinion Committee at (512) 463-2110. TRD-202001876 Lesley French General Counsel Office of the Attorney General Filed: May 12, 2020

♦ ♦ ♦ Opinions Opinion No. KP-0302

The Honorable Larry Taylor

Chair, Committee on Education

Texas State Senate

Post Office Box 12068

Austin, Texas 78711-2068

Re: Matters related to the Texas Windstorm Insurance Association and its compliance with House Bill 1900 and Senate Bill 615 (RQ-0318-KP)

S U M M A R Y

Section 2210.453 of the Insurance Code requires the Association to maintain total available loss funding in an amount not less than the probable maximum loss for a catastrophe year with a probability of one in 100. Pursuant to House Bill 1900, which became effective June 10, 2019, any costs of the reinsurance or alternative financing mechanisms

in excess of the probable maximum loss must be paid by assessments on the Association's members. To the extent the Association purchased reinsurance for the 2019 storm season prior to June 10, 2019, subsec-tion 2210.453(d) would not apply to such purchases.

Section 2210.1052 of the Insurance Code requires the Association's Board to provide notice to member insurers if an assessment may be imposed due to an ultimate loss estimate for an occurrence as deter-mined by the chief financial officer or chief actuary. If the first oppor-tunity for the Board to provide the requisite notice to member insurers about an assessment is at a regularly-scheduled Board meeting, it is unlikely a court would require the Board to call an emergency meeting in addition to the regularly-scheduled meeting in order to provide the requisite notice.

A grant of authority to three or more persons as a public body confers the authority on a majority of the number of members fixed by statute. Vacancies on the Board do not impair the Board's ability to take action, so long as the Board satisfies the quorum requirement.

Opinion No. KP-0303

The Honorable Clint T. Griffin

Schleicher County Attorney

Post Office Box 506

Eldorado, Texas 76936

Re: Authority of a county sheriff to donate forfeiture funds under Code of Criminal Procedure article 59.06 to a nonprofit entity providing of-fice space for mental health services, drug counseling services, and ser-vices for the victims of domestic abuse (RQ-0317-KP)

S U M M A R Y

Article 59.06, subdivision (d-2) of the Code of Criminal Procedure au-thorizes a county sheriff to donate a portion of forfeiture funds to an entity that assists in the provision of services specified in the article. Pursuant to article III, subsection 52(a) of the Constitution, a donation or other expenditure must satisfy a three-part test: (1) the predominant purpose of the expenditure is to serve a public purpose, (2) the expen-diture includes sufficient controls to ensure that the public purpose is carried out, and (3) the public entity receives return benefit. A court would likely find that the sheriff of Schleicher County may donate civil forfeiture funds to a nonprofit entity providing office space to entities providing one or more of the services specified in article 59.06, sub-division (d-2) of the Code of Criminal Procedure provided the sheriff determines that the expenditure is statutorily authorized and comports

ATTORNEY GENERAL May 22, 2020 45 TexReg 3399

https://neygeneral.govwww.texasattor

with the three-part test under article III, subsection 52(a) of the Texas Constitution.

Opinion No. KP-0304

The Honorable Matthew A. Mills

Hood County Attorney

1200 West Pearl Street

Granbury, Texas 76048

Re: Whether, when operating under a local disaster declaration, lo-cal governments may commandeer private property under Government Code section 418.108 (RQ-0342-KP)

S U M M A R Y

Section 418.108 of the Government Code authorizes the presiding of-ficer of the governing body of a political subdivision to declare a local state of disaster and grants local authorities certain powers to respond to the disaster. Section 418.108 does not authorize a county judge, a mayor of a municipality, or any other local government official to com-mandeer private property to respond to a disaster.

Opinion No. KP-0305

The Honorable Briscoe Cain

Chair, House Select Committee on Driver's License Issuance & Re-newal

Texas House of Representatives



Re: Extension of driver's license expiration dates due to COVID-19 and its effect on firearms purchases (RQ-0346-KP)

S U M M A R Y

In the context of the COVID-19 pandemic and the declared state of disaster in Texas, the Governor suspended provisions of the driver's license regulations regarding license expiration dates. A Texas driver's license that on its face lists an expiration date of March 13, 2020, or later is not expired under the Governor's suspension of laws and related DPS guidance until 60 days after the DPS provides further public notice that normal Driver's License operations have resumed.

Treating the driver's license as if it has no expiration date or adding a period of 60 days to the expiration date shown on the face of the driver's license are not advisable solutions for purposes of the ATF Form 4473 required in a transfer of firearms. The federal Bureau of Alcohol, To-bacco, Firearms, and Explosives regulates and enforces federal laws regarding such transfers, and any guidance provided by this office on the issue is not binding on the ATF. We therefore leave it to the ATF to determine the appropriateness of any entry on ATF Form 4473.

Opinion No. KP-0306

The Honorable Dan Flynn

Chair, House Committee on Defense & Veterans' Affairs




Re: Authority of a county judge to issue emergency orders regulating the business of pawnshops during a declared disaster (RQ-0347-KP)

S U M M A R Y

Section 371.005 of the Finance Code provides that the Legislature has exclusive authority regarding the operation of pawnshops. A local of-ficial lacks authority to rewrite state law that the Legislature has ex-pressly removed from local control. A court would likely find that the portions of Dallas County's order purporting to regulate pawnshops by limiting the fees those businesses can charge and changing the length of time they must hold pledged goods are invalid and unenforceable.

After declaring a state of disaster in Texas due to COVID-19, the Gov-ernor issued Executive Order GA-21, which "supersedes any conflict-ing order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts essential services or reopened services allowed" under the executive order. Operating a pawnshop provides essential lending services. Thus, Executive Order GA-21 prohibits a political subdivision from issuing a conflicting local order that restricts the operation of pawnshops. Whether a local order may limit the number of customers inside the premises of a pawnshop is a fact question. However, to the extent a pawnshop can operate un-der DSHS guidelines and consistent CDC recommendations with more than one customer on the premises at a time, a local order that purports to limit the occupancy of the premises to only one customer at a time, without regard to the size of the premises, conflicts with Executive Or-der GA-21 and, therefore, is superseded.

Opinion No. KP-0307

The Honorable Mayes Middleton

Co-Chair, Joint Interim Committee to Study a Coastal Barrier System




Re: Procedures for conducting appraisal review board hearings during the COVID-19 disaster (RQ-0351-KP)

S U M M A R Y

Subsection 41.41(a) of the Tax Code entitles a property owner to protest the determination of the appraised value of the owner's property, in addition to other adverse determinations made by a chief appraiser. Subsection 45.45(n) of the Tax Code gives property owners a right to appear in person at a protest hearing. Subsection 41.45(o) of the Tax Code and title 34, subsection 9.805(d) of the Texas Administrative Code do not allow appraisal review boards to require protest hearings be conducted by videoconference in lieu of in-person hearings when requested by a property owner.

Subsection 41.461(a)(3) of the Tax Code requires a chief appraiser to deliver a copy of the protest hearing procedures to property owners ini-tiating a protest. The appraisal district does not satisfy this requirement by only posting the protest procedures on the appraisal district website.

Subsection 41.12(a) of the Tax Code requires an appraisal review board, among other things, to approve the appraisal records by July 20. No later than the date it does so, the board must also deliver written notice to a property owner of any change in the records ordered by the board pursuant to subsection 41.11(a) that will result in an increase in the tax liability of the property owner. The board's failure to deliver notice to a property owner required by section 41.11 nullifies the change in the records to the extent the change is applicable to that property owner. However, the nullification is limited to that subsection and does not apply to all failures to give notice required by the Property Tax Code.

Opinion No. KP-0308

The Honorable Dade Phelan


♦ ♦ ♦

Chair, Committee on State Affairs




Re: Whether a local governmental entity under an emergency declara-tion has the authority to prevent an owner of a second home from occu-pying that property or limiting occupancy of housing based on length of the occupancy's term (RQ-0352-KP)

S U M M A R Y

The Texas and United States Constitutions prohibit government action that unlawfully discriminates on the basis of residence. They also en-sure citizens receive due process and that the government does not act arbitrarily. To the extent a local ordinance restricting access to or lim-iting occupancy of private property exceeds these boundaries, it is un-constitutional.

In addition, the Governor declared a state of disaster in Texas due to COVID-19 on March 13, 2020, and issued executive orders related

to the provision of essential services. Executive Order GA-21 super-sedes any conflicting order issued by local officials in response to the COVID-19 disaster to the extent that such a local order restricts es-sential services, such as obtaining residential housing. GA-21 there-fore prohibits a local governmental entity, acting under the authority of its emergency powers, from issuing an order that limits occupancy of housing based on length of the occupancy's term.

For further information, please access the website at www.texasattor-neygeneral.gov or call the Opinion Committee at (512) 463-2110. TRD-202001875 Lesley French General Counsel Office of the Attorney General Filed: May 12, 2020

ATTORNEY GENERAL May 22, 2020 45 TexReg 3401

https://neygeneral.govwww.texasattor

♦ ♦ ♦

TITLE 25. HEALTH SERVICES PART 1. DEPARTMENT OF STATE HEALTH SERVICES CHAPTER 448. STANDARD OF CARE SUBCHAPTER I. TREATMENT PROGRAM SERVICES 25 TAC §448.911 The Executive Commissioner of the Health and Human Ser-vices Commission (HHSC) adopts on an emergency basis in Title 25, Texas Administrative Code, Chapter 448 Standard of Care, amendment of §448.911, concerning an emergency rule in response to COVID-19 in order to expand a licensed Chemi-cal Dependency Treatment Facility's ability to provide treatment services through electronic means to adults and adolescents and reduce the risk of COVID-19 transmission. As authorized by Government Code §2001.034, the Commission may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare re-quires adoption on fewer than 30 days' notice. Emergency rules adopted under Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days. BACKGROUND AND PURPOSE The purpose of the emergency rulemaking is to support the Governor's March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and di-rected that government entities and businesses would continue providing essential services. The Commission accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this amendment of Treatment Services Provided by Electronic Means. To protect patients and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule amendment to §448.911(a)(1) to temporar-ily permit a licensed Chemical Dependency Treatment Facility (CDTF) to provide treatment services through electronic means to adult and adolescent clients in order to reduce the risk of COVID-19 transmission.

STATUTORY AUTHORITY The emergency rulemaking is adopted under Government Code §2001.034 and §531.0055, and Health and Safety Code §464.009. Government Code §2001.034 authorizes the adop-tion of emergency rules without prior notice and hearing, if an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule on fewer than 30 days' notice. Government Code §531.0055 authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by the health and human services system. Health and Safety Code §464.009 authorizes the Executive Commissioner of HHSC to adopt rules governing organization and structure, policies and procedures, staffing requirements, services, client rights, records, physical plant requirements, and standards for licensed CDTFs. This emergency rule implements Government Code §531.0055 and Health and Safety Code §464.009. §448.911. Treatment Services Provided by Electronic Means.

(a) A licensed treatment program may provide outpatient chemical dependency treatment program services by electronic means provided the criteria outlined in this section are addressed.

(1) Services [shall] may be provided to adult and adoles-cent clients [only]; and

(2) (No change.)

(b) - (x) (No change.)

The agency certifies that legal counsel has reviewed the emer-gency adoption 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 12, 2020. TRD-202001885 Karen Ray Chief Counsel Department of State Health Services Effective date: May 12, 2020 Expiration date: September 8, 2020 For further information, please call: (512) 834-4591

EMERGENCY RULES May 22, 2020 45 TexReg 3403

TITLE 7. BANKING AND SECURITIES PART 6. CREDIT UNION DEPARTMENT CHAPTER 91. CHARTERING, OPERATIONS, MERGERS, LIQUIDATIONS SUBCHAPTER G. LENDING POWERS 7 TAC §91.708 The Credit Union Commission (the Commission) proposes amendments to §91.708, relating to a credit union's utilization of appraisals on consumer real estate loans. The Commission proposes these amendments as a result of its regular rule review under Texas Government Code §2001.039 and Texas Finance Code §15.402, which authorizes the Commission to adopt reasonable rules for administering Texas Finance Code, Title 2, Chapter 15 and Title 3, Subtitle D. The proposed amendments to §91.708 reflect amendments made to the National Credit Union Administrations Rules and Regulations Part 722 (12 CFR Part 722) to align with require-ments of other depository financial services providers. The amended language increases the threshold at which licensed appraisals are required when underwriting consumer real estate loans. The proposed language requires consumer real estate loans at or exceeding $400,000 to have an appraisal conducted by a state licensed appraiser, an increase from the current $250,000 limit. The proposed amendment is necessary to maintain competitiveness with the federal credit union charter, and update credit union rules to the same standard applied to federal and state banking industries. FISCAL NOTE ON STATE AND LOCAL GOVERNMENTS. John J. Kolhoff, Commissioner, has determined that for the first five-year period the proposed amendments are in effect, there are no reasonably foreseeable implications relating to cost or rev-enues of state or local governments, under Government Code §2001.024(a)(4), as a result of enforcing or administering these amendments, as proposed. PUBLIC BENEFIT/COST NOTE. Mr. Kolhoff has determined, under Government Code §2001.024(a)(5), that for the first five-year period the amended rules are in effect, the public benefit of rule clarity will provide improved guidance to the industry. He further has determined there will be no probable economic cost to the credit union system or to persons required to comply with the rule. IMPACT ON LOCAL EMPLOYMENT OR ECONOMY. There is no reasonably forecasted effect on local economy for the first five years that the proposed amendments are in effect. Therefore,

no economic impact statement, local employment impact state-ment, nor regulatory flexibility analysis is required under Texas Government Code §§2001.022 or 2001.024(a)(6). COST TO REGULATED PERSONS (COST-IN/COST-OUT). This rule proposal is not subject to Texas Government Code §2001.0045, concerning increasing costs to regulated persons, because this agency is a Self-Directed Semi-Independent (SDSI) agency under Finance Code Chapter 16 and is exempt from that cost provision. ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MI-CRO-BUSINESSES, AND RURAL COMMUNITIES. Mr. Kolhoff has also determined that for each year of the first five years the proposed amendment is in effect, there will be no reasonably forecasted adverse economic effect on small businesses, mi-cro-businesses, or rural communities as a result of implementing these amendments, and, therefore, no regulatory flexibility analysis, as specified in Texas Government Code §2006.002 is required. GOVERNMENT GROWTH IMPACT STATEMENT. In compli-ance with Texas Government Code §2001.0221, the Board has prepared a government growth impact statement. Unless indicated below, for each year of the first five years that the rule will be in effect, the rule will not: --create or eliminate a government program; --require the creation of new employee positions or the elimina-tion of existing employee positions; --require an increase or decrease in future legislative appropria-tions to the agency; --lead to an increase or decrease in the fees paid to the depart-ment; --create new regulations; --expand, limit or repeal existing regulation; --increase or decrease the number of individuals subject to the rule's applicability; --positively or adversely affect this state's economy. TAKINGS IMPACT ASSESSMENT. No private real property in-terests 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. Therefore, the rule does not constitute a taking under Texas Government Code §2007.043. ENVIRONMENTAL RULE ANALYSIS. The proposed rule is not a "major environmental rule" as defined by Government Code §2001.0225. The proposed rule is not specifically intended to

PROPOSED RULES May 22, 2020 45 TexReg 3405

protect the environment or to reduce risks to human health from environmental exposure. Therefore, a regulatory environmental analysis is not required. REQUEST FOR PUBLIC COMMENT. Written comments on the proposed amendments may be submitted in writing to John J. Kolhoff, Commissioner, Credit Union Department, 914 East An-derson Lane, Austin, Texas 78752-1699 or by email to [email protected]. To be considered, a written comment must be received on or before 5:00 p.m. on the 31st day after the date the proposal is published in the Texas Register. STATUTORY AUTHORITY. The amendments are proposed pur-suant to Texas Finance Code §15.402, which authorizes the Commission to adopt reasonable rules for administering Texas Finance Code, Title 2, Chapter 15 and Title 3, Subtitle D. STATUTORY SECTIONS AFFECTED. The statutory provisions affected by the proposed amendments are contained in Texas Finance Code Chapter 15, and Title 3, Subtitle D specifically §§123.201 and 124.001. §91.708. Real Estate Appraisals or Evaluations.

(a) Policies and Procedures. A credit union's board of directors is responsible for reviewing and adopting policies and procedures that establish and maintain an effective, independent real estate appraisal and evaluation program. A credit union's selection criteria for individ-uals who may perform appraisals or evaluations must provide for the independence of the individual performing the evaluation. That is, the individual has neither a direct nor indirect interest, financial or other-wise, in the property or transaction. The individual selected must also be competent to perform the assignment based upon the individual's qualifications, experience, and educational background. An individual may be an employee of a credit union if the individual qualifies under the conditions and requirements contained in Part 722 of the National Credit Union Administration Rules and Regulations.

(b) Loans Over $400,000 [$250,000]. For real estate loans in which the loan amount [of the loan] or extension of credit exceeds $400,000 [$250,000], the credit union shall obtain a professional ap-praisal report by a state certified or licensed appraiser. The appraisal report shall be in writing and conform to generally accepted appraisal standards as evidenced by the Uniform Standards of Professional Ap-praisal Practice promulgated by the Appraisal Standards Board of the Appraisal Foundation, in Washington, D.C.

(c) Loans $400,000 [$250,000] or Less. For [a] real estate loans with a loan [an] amount [of the loan] or extension of credit of $400,000 [$250,000] or less, the services of a state certified or licensed appraiser is not necessary; however, the credit union must obtain an appropriate evaluation of real property collateral that is supported by a written estimate of market value either performed by a qualified in-dividual who has demonstrated competency in performing evaluations or from tax appraisal data of a governmental entity.

(d) Right to Require an Appraisal. The commissioner may re-quire an appraisal under this section, at the expense of the credit union, when the commissioner has reasonable cause to believe the value of the collateral is overstated.

(e) Existing Loans. In the case of renewal of a loan where there has been no obvious and material change in market conditions or physical aspects of the property that threatens the adequacy of the credit union's real estate collateral protection after the transaction, even with the advancement of additional funds, a written certification of current value by the original appraiser or an acceptable substitute shall satisfy this section.

(f) Other Appraisal Requirements. A credit union shall also comply with applicable real estate appraisal requirements contained within Part 722 of the National Credit Union Administration Rules and Regulations.

The agency certifies that legal counsel has reviewed the pro-posal 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 11, 2020. TRD-202001840 John J. Kolhoff Commissioner Credit Union Department Earliest possible date of adoption: June 21, 2020 For further information, please call: (512) 837-9236

♦ ♦ ♦ TITLE 13. CULTURAL RESOURCES PART 7. STATE PRESERVATION BOARD CHAPTER 111. RULES AND REGULATIONS OF THE BOARD 13 TAC §111.13 The State Preservation Board (Board) proposes amendments to 13 TAC §111.13, Exhibitions in the Capitol and Capitol Exten-sion. BACKGROUND AND SECTION-BY-SECTION ANALYSIS For a number of years, the Board has overseen a program by which private individuals could "for a nominal fee and with an appropriate sponsor" exhibit displays in designated areas of the Capitol and Capitol Extension. By and large, this program has successfully allowed elected representatives to sponsor visual displays created by Texans for the education and edification of other Texans. There has, however, been occasional confusion about what types of displays were contemplated by the program, who is ultimately responsible for the content of those displays, and how those displays are connected to the State or state of-ficials. While episodic, the Board has determined it best to ad-dress that confusion. The amendments to §111.13 are designed to clarify that all future exhibits in the Capitol will be adopted and identified as govern-ment speech, including identifying its sponsor. The amendments change the heading's use of the term "exhibition" to "exhibit" to reflect the word usage throughout the amended rule; other simi-lar typographical changes are made for consistent usage. They are not intended to be substantive changes unless described herein. The definition of public purpose (§111.13(a)(3)) clarifies what types of exhibits will be considered for adoption as gov-ernment speech and expressly excludes exhibits that are sen-sationalistic, gruesome, obscene, or depictions of political con-troversy. The definition of State Official Sponsor (§111.13(a)(4)) clarifies that a qualified elected official may sponsor an exhibit proposed by his or her constituents, but that he or she is re-sponsible for ensuring that the exhibit complies with all applica-ble rules. §111.13(b) is added to explicitly adopt the exhibit as government speech and to require that any exhibit in the Capitol be accompanied by a sign identifying the State Official Sponsor


mailto:[email protected]

and indicating the Board's approval. Because any exhibit will be-come government speech for the duration of its display, the cur-rent fee to obtain access to space within the Capitol is removed from what is now §111.13(c). However, individuals proposing an exhibit retain ownership of that exhibit and are responsible for costs of assembling, displaying, and removing the exhibit as well as (if necessary) providing additional security for a valuable exhibit. The criteria for consideration (§111.13(d)) are amended to make explicit that because all displays constitute the govern-ment's speech, the Board retains discretion to reject any exhibit as inappropriate for government speech. To be considered, all content of the exhibit (including any text) must be clearly dis-closed to the Board, and the Sponsor must make a written state-ment that he or she has reviewed that content and concluded that it is consistent with the rules and proper for adoption as government speech. Consistent with the exhibit's adoption as government speech, the Board retains discretion to make any changes it deems appropriate to the exhibit. Finally, the amend-ments clarify that the scheduling and duration of the display of an exhibit (§111.13(e)) is at the discretion of the Board. FISCAL NOTE ON STATE AND LOCAL GOVERNMENTS. Rod Welsh, Executive Director for the Board, has determined that for the first five-year period the proposed amendments are in effect, there are only minor implications relating to cost or revenues of the state, and none for local governments, under Texas Govern-ment Code §2001.024(a)(4), as a result of enforcing or adminis-tering these amendments as proposed. The state has received nominal amounts of fees during the time the Board has had this rule in place. As a result, the elimination of the fee will have a minor impact. PUBLIC BENEFIT/COST NOTE. Mr. Welsh has determined, un-der Texas Government Code §2001.024(a)(5) that that for the first five-year period the rule amendments are in effect, the public benefit will be the elimination of any confusion regarding the per-son or persons responsible for any exhibits placed in the Capi-tol. Costs to the public will not be significantly changed by this amendment. At present, individuals who wish to place an ex-hibit in the Capitol must locate an eligible sponsor; pay a nom-inal fee to obtain access to the space; and bear all costs as-sociated with creating, displaying, securing, and removing the exhibit. The only change is to remove the nominal fee. He fur-ther has determined there will be no probable economic cost to persons required to comply with the rule amendments because the rule amendment does not add fees or costs. IMPACT ON LOCAL EMPLOYMENT OR ECONOMY. There is no effect on local economy for the first five years that the pro-posed amendments are in effect because this rule concerns the temporary display of exhibits in the Capitol, which is state prop-erty, and, therefore, it will have no impact on local economy. Therefore, no economic impact statement, local employment im-pact statement, nor regulatory flexibility analysis is required un-der Texas Government Code §§2001.022 or 2001.024(a)(6). COST TO REGULATED PERSONS (COST-IN/COST-OUT). This rule proposal is not subject to Texas Government Code §2001.0045, concerning increasing costs to regulated persons, because, as described above in the public benefit and cost note, the proposed amendments do not impose a cost on regulated persons under Texas Government Code §2001.024, including another state agency, a special district, or a local government. ECONOMIC IMPACT STATEMENT AND REGULATORY FLEX-IBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSI-NESSES, AND RURAL COMMUNITIES. Mr. Welsh has also

determined that there will be no impact on rural communities, small businesses, or micro-businesses as a result of implement-ing these amendments and, therefore, no regulatory flexibility analysis, as specified in Texas Government Code §2006.002 is required because the rule concerns only activities that occur in the Capitol and Capitol Extension. GOVERNMENT GROWTH IMPACT STATEMENT. In compli-ance with Texas Government Code §2001.0221, the Board has prepared the following government growth impact statement. During the first five years the proposed rule is in effect, this proposed amendments: (1) will not create or eliminate a gov-ernment program; (2) will not result in an increase or decrease in the number of agency employees; (3) will not require an increase or decrease in future legislative appropriations to the agency; (4) will not lead to an increase in fees paid to a state agency and will lead to only a minor decrease in fees paid to the Board because the fees to display exhibits in the Capitol were always nominal and have been limited in recent years by renovations in the Capitol that have limited space available for exhibitions; (5) will not create a new regulation; (6) will not repeal an existing regulation; and (7) will not result in an increase or decrease in the number of individuals subject to the rule; and (8) will not positively or adversely affect the state's economy because the amount of fees the Board received under the current program has always been minor and used to defray any cost with processing applications for the program rather than promote external economic activity. TAKINGS IMPACT ASSESSMENT: The Board has determined that no private real property interests are affected by this pro-posal 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. ENVIRONMENTAL RULE ANALYSIS. The proposed rule is not a "major environmental rule" as defined by Texas Government Code §2001.0225. The proposed rule is not specifically intended to protect the environment or to reduce risks to human health from environmental exposure. Therefore, a regulatory environ-mental analysis is not required. REQUEST FOR PUBLIC COMMENT. Any comments or request for a public hearing may be submitted no later than 30 days after the publication of this notice to Rod Welsh, Executive Director, State Preservation Board, P.O. Box 13286, Austin, Texas, faxed to his attention at (512) 463-3372 or sent by email to [email protected]. Emails should contain the words "Comment to Rule" in the sub-ject heading. STATUTORY AUTHORITY AND SECTIONS AFFECTED. The amendments are proposed pursuant to Texas Government Code §443.007, which authorizes the Board to adopt rules concerning the buildings, their contents, and their grounds; and Texas Gov-ernment Code §443.018, which authorizes the Board to adopt rules that regulate the actions of visitors in the Capitol or on the grounds of the Capitol including rules that prohibit persons from attaching signs, banners, or other displays to a part of the Capitol or to a structure, including a fence, on the grounds of the Capitol except as approved by the board. No other statutes, articles or codes are affected by the proposed amendments. §111.13. Exhibits [Exhibitions] in the Capitol and Capitol Extension


mailto:[email protected]

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Exhibit [Exhibitions]--Any display of artwork, includ-ing paintings, sculptures, arts and crafts; photographs; public service and general interest presentations; and historical displays.

(2) Public areas of the Capitol and Capitol Extension--The hallways, entrances, vestibules, stairways, light courts, rotundas, and other areas adjacent to or [and] near the rotunda.

(3) Public purpose--The promotion of the public health, ed-ucation, safety, [morals,] general welfare, security, and prosperity of all of the inhabitants or residents within the state, the sovereign pow-ers of which are exercised to promote such public purpose or public business. The chief test of what constitutes a public purpose is that the public generally must have a direct interest in the purpose and the community at large is to be benefitted. This does not include exhibits that are inconsistent with the historic presence of the Capitol and Capi-tol Extension, including exhibits which are sensationalistic, gruesome, or obscene. It also does not include activities which depict subjects of a contemporary political controversy or [activities] which promote a specific viewpoint or issue and could be considered lobbying. Political rallies, receptions, and campaign activities are prohibited in the public areas of the Capitol and Capitol Extension.

(4) State official sponsor--The Governor, the Lieutenant Governor, the Speaker of the Texas House of Representatives, a Texas Senator, or member of the Texas House of Representatives may sponsor exhibits proposed by his or her constituents. The State Official Sponsor is responsible for determining that an exhibit meets all applicable rules. Potential exhibitors are advised to consult with their proposed Sponsor regarding whether additional rules apply.

(b) Any exhibit approved and scheduled pursuant to this sec-tion by the office of the State Preservation Board is hereby adopted as government speech, and shall be accompanied by a statement identify-ing the State Official Sponsor and indicating the approval of the office of the State Preservation Board.

(c) Fees and Costs. No fee is required from persons or entities that use the Capitol and Capitol Extension for an exhibit. However, the State Preservation Board may require any exhibitor to cover the direct and indirect costs to the state of the exhibit, including the costs of labor, materials, and utilities directly or indirectly attributable to the exhibit, including costs of assembling, displaying, and removing exhibits.

(d) Criteria for Exhibit Consideration.

(1) Exhibits may be approved and scheduled by the office of the State Preservation Board.

(2) Exhibits will not be considered for display unless they serve a public purpose as defined in subsection (a)(3) of this section.

(3) To be considered, a request must be accompanied by:

(A) a detailed description of the exhibit, including di-mensions of the space required, how the exhibit will be displayed, and every word to be conveyed by the exhibit;

(B) a clear photograph of the entire exhibit, preferably as it will be displayed, or a scale drawing if a photograph is not avail-able;

(C) a brief statement of the purpose of the exhibit; and

(D) statement of a State Official Sponsor as described in subsection (a)(4) of this section that the exhibit meets the criteria and is appropriate for adoption as government speech.

(4) Incomplete requests will not be considered.

(5) Exhibits must be tastefully exhibited. The office of the State Preservation Board reserves the right to require the exhibitor to make any changes to the exhibit.

(6) Exhibit space will be assigned at the discretion of the office of the State Preservation Board, considering factors such as the size, scope, and design of the exhibit. Exhibits will not be approved for display in the Capitol rotunda in order to maintain its historic presence.

(7) To be considered for display, an exhibit must be free-standing. Art and photographic exhibits must be secured to tripods, backdrops, or freestanding displays. Exhibits may not:

(A) hang from or attach to walls or railings;

(B) obstruct entrances;

(C) interrupt traffic flow through the building;

(D) damage walls, woodwork, or floors;

(E) obstruct the view or access to fire-fighting equip-ment or fire alarm pull stations; or

(F) involve the use of any flammable, hazardous, or odorous chemicals or materials, torches, or other open-flame illumi-nating devices or fires.

(8) Exhibits will not be considered for display as govern-ment speech in the Capitol or Capitol Extension if they:

(A) feature one individual's artwork for the purpose of commercially advertising that person's artwork;

(B) promote a commercial enterprise;

(C) have no public purpose; or

(D) have an illegal purpose.

(9) If other than routine security provided by Capitol police is needed for the exhibit, the exhibitor will bear such costs. The State of Texas, the State Preservation Board, or any employee of the State Preservation Board shall not be held liable in case of damage or loss to an exhibit while it is on display in the Capitol and Capitol Extension.

(e) Scheduling exhibits.

(1) Because exhibits in the Capitol and Capitol Extension are government speech, the State Preservation Board retains discretion regarding how long to display an exhibit. Exhibits typically are dis-played for up to 5 working days.

(2) The office of the State Preservation Board may shorten or extend the display time for exhibits.

(3) No more than one exhibit will be approved for display on the same day in a designated area of the Capitol and Capitol Exten-sion.

(4) A written request using State Preservation Board forms to display an exhibit must be received by the office of the State Preser-vation Board no later than two weeks prior to the first day of the time being requested.

[(b) Fee for use of Capitol and Capitol Extension. A fee is required from persons or entities that use the Capitol and Capitol Ex-tension, for an exhibition. The fee is in an amount set by the office of the State Preservation Board designed to recover the estimated direct and indirect costs to the state of the exhibition, including the costs of labor, materials, and utilities directly or indirectly attributable to the exhibition. The fee is required in the office of the State Preservation Board no later than 24 hours prior to the exhibit installation.]


[(c) Criteria for Exhibition Approval.]

[(1) Exhibitions shall be approved and scheduled by the of-fice of the State Preservation Board upon the recommendation of a state official sponsor as described in subsection (a)(4) of this section.]

[(2) Exhibitions must be for a public purpose as defined in subsection (a)(3) of this section.]

[(3) Request must be accompanied by:]

[(A) a detailed description of the exhibit, including di-mensions of the space required, and how the exhibit will be displayed;]

[(B) a clear photograph of the entire exhibit, preferably as it will be displayed. A scale drawing may be submitted in lieu of a photograph if a photograph is not available;]

[(C) a brief statement of the purpose of the exhibit; and]

[(D) recommendation of a state official sponsor as de-scribed in subsection (a)(4) of this section.]

[(4) Incomplete requests will not be considered.]

[(5) Exhibits must be tastefully exhibited. Once erected, the office of the State Preservation Board reserves the right to require the exhibitor to make aesthetic changes to the exhibit.]

[(6) Exhibit space will be assigned based primarily on the size, scope, and design of the exhibit. Exhibitions will not be approved for display in the Capitol rotunda in order to maintain its historic pres-ence.]

[(7) Exhibitors must bear all costs of assembling, display-ing, and removing exhibits.]

[(8) All exhibits must be freestanding. Art and photo-graphic exhibits must be secured to tripods, backdrops, or freestanding displays. Exhibits may not:]

[(A) hang from or attach to walls or railings;]

[(B) obstruct entrances;]

[(C) interrupt traffic flow through the building;]

[(D) damage walls, woodwork, or floors;]

[(E) obstruct the view or access to fire-fighting equip-ment or fire alarm pull stations; or]

[(F) involve the use of any flammable, hazardous, or odorous chemicals or materials, torches, or other open-flame illumi-nating devices or fires.]

[(9) Exhibits will not be considered for display in the Capi-tol and Capitol Extension if they: ]

[(A) feature one individual's artwork for the purpose of commercially advertising that person's artwork;]

[(B) promote a commercial enterprise;]

[(C) have no obvious public purpose; or]

[(D) have an illegal purpose.]

[(10) If other than routine security provided by Capitol po-lice is needed for the exhibit, the exhibitor will bear such costs. The State of Texas, the State Preservation Board, or any employee of the State Preservation Board shall not be held liable in case of damage or loss to an exhibit while it is on display in the Capitol and Capitol Ex-tension.]

[(d) Scheduling exhibits.]

[(1) Exhibits may be displayed for up to 5 working days.]

[(2) The office of the State Preservation Board may extend the display time for major exhibitions.]

[(3) No more than one exhibit will be approved for display on the same day in a designated area of the Capitol and Capitol Exten-sion.]

[(4) A written request using State Preservation Board forms to display an exhibit must be received by the office of the State Preservation Board no later than two weeks prior to the first day of the time being requested.]

The agency certifies that legal counsel has reviewed the pro-posal 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 11, 2020. TRD-202001851 Rod Welsh Executive Director State Preservation Board Earliest possible date of adoption: June 21, 2020 For further information, please call: (512) 475-3616

♦ ♦ ♦ TITLE 16. ECONOMIC REGULATION PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION CHAPTER 97. MOTOR FUEL METERING AND QUALITY The Texas Department of Licensing and Regulation (Depart-ment) proposes new rules at 16 Texas Administrative Code (TAC), Chapter 97, Subchapter A, §§97.1 - 97.3; Subchapter B, §§97.20 - 97.28; Subchapter C, §§97.40 - 97.43; Subchap-ter D, §§97.50 - 97.60; Subchapter E, §§97.70 - 97.74; and Subchapter F, §97.80, regarding the Motor Fuel Metering and Quality Program. These proposed changes are referred to as "proposed rules." EXPLANATION OF AND JUSTIFICATION FOR THE RULES The proposed rules are necessary to implement Senate Bill (SB) 2119, 86th Legislature, Regular Session (2019), which trans-ferred the Motor Fuel Metering and Quality Program (Program) from the Texas Department of Agriculture (TDA) to the Texas Commission of Licensing and Regulation (Commission) and the Department and which, effective September 1, 2020, creates new Texas Occupations Code, Chapter 2310, Motor Fuel Me-tering and Quality. The proposed rules are necessary to enable the Commission and the Department to administer and regulate the Program. The proposed rules are separate from, and are not to be confused with, the TDA rules located at 4 TAC, Chapters 5 and 12, regarding the Program, which are still in effect but will be repealed. The Department established the Motor Fuel Metering and Qual-ity Workgroup (Workgroup), authorized by SB 2119, Section 12, to advise the Department and TDA on the orderly transfer of the Program. The proposed rules were presented to and discussed with the Workgroup at its initial meeting on February 27, 2020,


and its members subsequently provided additional input in meet-ings of less than a quorum prior to this publication. SECTION-BY-SECTION SUMMARY The proposed rules create new Subchapter A to contain general provisions applicable to the chapter. The proposed rules create new §97.1 to identify the statutory authority under which the proposed rules are to be promulgated. The proposed rules create new §97.2 to establish definitions used in the chapter. The proposed rules create new §97.3 to adopt by reference cer-tain nationally recognized minimum standards incorporated into the chapter. The proposed rules create new Subchapter B to contain provi-sions applicable to motor fuel metering devices. The proposed rules create new §97.20 to establish the require-ments for registration of devices. The proposed rules create new §97.21 to establish the renewal requirements for device registrations. The proposed rules create new §97.22 to establish the respon-sibilities of an owner or operator when there is a change to the number of registered devices. The proposed rules create new §97.23 to establish the require-ments for device performance reviews. The proposed rules create new §97.24 to establish the require-ments applicable to certificates of registration. The proposed rules create new §97.25 to establish the require-ments applicable to consumer information stickers. The proposed rules create new §97.26 to establish the require-ments applicable to devices that fail to comply with technical re-quirements. The proposed rules create new §97.27 to establish the require-ments applicable to devices that are condemned by the depart-ment. The proposed rules create new §97.28 to establish the require-ments for maintenance of records of device performance re-views. The proposed rules create new Subchapter C to contain provi-sions applicable to the sale, delivery, and quality of motor fuel. The proposed rules create new §97.40 to establish the require-ments applicable to certificates of compliance for distributors, jobbers, suppliers, and wholesalers. The proposed rules create new §97.41 to establish the require-ments applicable to automotive fuel rating. The proposed rules create new §97.42 to establish the require-ments applicable to stop-sale orders. The proposed rules create new §97.43 to establish the require-ments applicable to the maintenance of fuel delivery records. The proposed rules create new Subchapter D to contain the pro-visions applicable to service companies and service technicians. The proposed rules create new §97.50 to establish the require-ment of criminal history checks on applicants for service com-pany licenses and service technician licenses.

The proposed rules create new §97.51 to establish device cat-egories and types of maintenance activities that a service com-pany or service technician may perform. The proposed rules create new §97.52 to establish the require-ments for a service company license. The proposed rules create new §97.53 to establish the insurance requirements for a service company. The proposed rules create new §97.54 to establish the renewal requirements for a service company license. The proposed rules create new §97.55 to establish the require-ments for a service technician license. The proposed rules create new §97.56 to establish the renewal requirements for a service technician license. The proposed rules create new §97.57 to establish the exami-nation requirements for a service technician license. The proposed rules create new §97.58 to establish the require-ments applicable to test standards. The proposed rules create new §97.59 to establish the responsi-bilities of a service technician to inspect for and report the pres-ence of a skimmer. The proposed rules create new §97.60 to establish the records maintenance requirements for service companies. The proposed rules create new Subchapter E to contain provi-sions relating to fees. The proposed rules create new §97.70 to establish device fees. The proposed rules create new §97.71 to establish fees for dis-tributors, jobbers, wholesalers, and suppliers. The proposed rules create new §97.72 to establish fees for ser-vice companies. The proposed rules create new §97.73 to establish fees for ser-vice technicians. The proposed rules create new §97.74 to establish policies ap-plicable to fees. The proposed rules create new Subchapter F to contain fees relating to enforcement. The proposed rules create new §97.80 to establish the authority of the Commission and the Department to institute enforcement proceedings to impose administrative penalties and sanctions for violations of applicable laws and rules. FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT Tony Couvillon, Policy Research and Budget Analyst, has deter-mined that for each year of the first five years the proposed rules are in effect, enforcing or administering the proposed rules does not have foreseeable implications relating to costs or revenues of local governments. Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to the state as a result of enforcing or administering the proposed rules. Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, revenue to the state will be affected as follows: (1) in the first year, an estimated loss in revenue of $193,884; (2) in the second year, an estimated loss in revenue of $191,544; (3) in the third year, an estimated loss in


revenue of $189,204; (4) in the fourth year, an estimated loss in revenue of $186,864; and (5) in the fifth year, an estimated loss in revenue of $184,524. The proposed rules will decrease the fuel quality fee for approx-imately: - 114,949 devices that deliver multiple gasoline products per noz-zle by $1.50 per year; - 15,170 devices that deliver a single gasoline product per nozzle by $0.50 per year; - 1,173 devices with a maximum flow rate greater than 100 gal-lons per minute (GPM) from $1.00 per year to $0; and - 102 suppliers by $200 per year. The proposed rules will increase the fuel quality fee for approx-imately: - 56,850 devices that deliver diesel or another non-gasoline prod-uct from a single nozzle by $2.50 per year; - 2,140 devices that deliver E85 ethanol fuel from a single nozzle by $2.50 per year; and - 8,437 motor fuel metering devices with a maximum flow rate of 20 GPM to 100 GPM by $2.50 per year. The proposed rules will decrease the registration fees for ap-proximately: - 8,437 devices with a maximum flow rate of 20 GPM to 100 GPM by $15 per year; and - 1,173 devices with a maximum flow rate greater than 100 GPM by $25 per year. The proposed rules will decrease the additional device category license fee by $50 per year for service companies, of which ap-proximately 41 companies currently hold registrations in a sec-ond device category, and no companies currently hold registra-tions in three categories. The proposed rules will also create a $30 license fee and a two-year license term for service technicians. The current pop-ulation of approximately 725 service technicians hold five-year licenses issued by TDA. As their current licenses expire, service technicians will pay the license fee to renew their licenses with TDLR for a two-year license period, at the rate of approximately 145 renewals per year. All other licenses and registrations, will transition from a one-year license or registration period to two years. Half of the pop-ulation of each license or registration will pay an application fee for a two-year license in the first year. The other half of the pop-ulation will pay an application fee for a two-year license in the following fiscal year. The overall reduction in fees will result in a loss of revenue to the state in each of the first five years the proposed rules are in effect. LOCAL EMP

Documents

Volume 45 Number 21 May 22, 2020 Pages 3389 - 3544 · to expire January 31, 2021, James M. Mosley of Borger, Texas (replac-ing Anahid E. "Ana" Estevez of Amarillo, whose term expired)