PART 4. TEXAS MILITARY DEPARTMENT
CHAPTER 138. HAZARDOUS PROFESSION DEATH BENEFITS
The Texas Military Department (Department) proposes new Chapter 138 provisions relating to benefits for survivors of members of the Texas Military Forces. The Department proposes the new rule pursuant to House Bill 90, 88th Legislative Session (2023) which amended Chapter 615, Government Code.
Rulemaking authority is granted to state agencies by Texas Government Code § 2001.004, which requires a state agency to adopt rules of practice and procedure. The mandate in Texas Government Code § 615.024(c) requires the Department to adopt rules providing the circumstances under which the death of an individual described by Section 615.024(b) entitles an eligible survivor to the payment of assistance under Chapter 615. The new provisions are proposed to establish procedures for confirming eligibility for payment of survivor benefits, verifying to whom benefits are to be paid, and how benefits will be processed under the Chapter 615 claim process.
Proposed new rule 37 TAC 138.1: (a) defines the effective date for the death benefits; (b) defines survivor eligibility; and (c) establishes a personal injury sustained in the line of duty as the basis for benefits and defines the terms "personal injury" and "line of duty".
Proposed new rule 37 TAC 138.2 defines the investigative procedures that the Department will follow to determine eligibility for survivor benefits.
Proposed new rule 37 TAC 138.3 outlines the established process and required documentation for submitting eligible claims to the Employees Retirement System to initiate the payment process and identifies the Department certifying official.
Ms. Shelia Bailey Taylor, Director of State Administration, has determined that for the first five-year period during which the new rules is in effect any fiscal implications for state or local government as a result of enforcing or administering the new rule depend on the number of deaths that occur on or after September 1, 2023, which is not quantifiable at this time.
Ms. Shelia Bailey Taylor has also determined that for the first five-year period during which the new rule is in effect there is no anticipated economic cost to persons who are required to comply with the rule. There will be no effect on small businesses or micro-businesses as a result of enforcing this rule.
Ms. Shelia Bailey Taylor has determined that for each year of the first five years that the new rules will be in effect, the public benefit will be implementation of required legislation.
Pursuant to Government Code §2001.0221, the Department has determined the following for each year of the first five years the proposed rules will be in effect:
1. The proposed rules do not create or eliminate a government program.
2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.
3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the Department.
4. The proposed rules do not require an increase or decrease in fees paid to the Department.
5. The proposed rules do create a new regulation.
6. The proposed rules do not expand, limit, or repeal an existing regulation.
7. The proposed rules increase the number of individuals subject to the rules' applicability.
8. The proposed rules do not positively or adversely affect this state's economy.
Written comments on the proposed new Chapter 138 rule and/or subsequent provisions of the rule may be submitted to Bernie Garza by electronic mail to bernie.garza@military.texas.gov or by U.S. mail to P.O. Box 5218, Austin, Texas 78763-5218. Comments are due within 30 days of publication of the proposed adoption of the new rule in the Texas Register.
The new rules are proposed in accordance with Chapters 2001, 615, and 437 of the Texas Government Code.
No other statutes, articles, or codes are affected by the proposed new rules.
§138.1.Applicability.
(a) This rule applies to a member of the Texas Military Forces whose death occurs on or after September 1, 2023. For purposes of this rule, a death that occurs before September 1, 2023, is governed by the law in effect on the date the death occurred, and the former law is continued in effect for that purpose.
(b) A survivor of an individual who is a member of the Texas Military Forces is eligible to receive a lump sum payment under Texas Government Code Section 615.022 and monthly assistance under Section 615.023, as applicable, if:
(1) the individual died while on state active duty;
(2) the Texas Military Department certifies to the Employees Retirement System of Texas (ERS) that the circumstances of the individual's death entitle an eligible survivor to the payment of assistance under Chapter 615 of the Texas Government Code; and
(3) the survivor is:
(A) a beneficiary designated by the individual on the individual's United States Department of Defense Form DD-93; or
(B) a beneficiary designated by the individual on the Texas Military Department Record of Emergency Data form; or
(4) if there is no beneficiary described by Paragraph (3)(A) or (3)(B):
(A) the surviving spouse of the decedent;
(B) a surviving child of the decedent if there is no surviving spouse; or
(C) the surviving parent of the decedent if there is no surviving spouse or child.
(c) For purposes of this rule, a death on state active duty means the individual died because of a personal injury sustained in the line of duty in connection with the performance of military or emergency service for this state at the call of the governor or the governor's designee.
(1) "Personal injury" means an injury resulting from an external force, an activity, or a medical condition caused by or resulting from:
(A) a line-of-duty accident; or
(B) a medical condition caused by line-of-duty work under hazardous conditions.
(2) "Line of duty" means an action the individual is required or authorized by rule, condition of employment, or law to perform. The term includes, but is not limited to:
(A) an action by the individual at a social, ceremonial, athletic, or other function to which the individual is assigned by the individual's employer; and
(B) an action performed as part of a training program the individual is required or authorized by rule, condition of employment, or law to undertake.
§138.2.Eligibility Determination.
(a) The Department will utilize the investigative procedures established in Army Regulation 600-8-4, Line of Duty Policy, Procedures, and Investigations, to verify the line of duty death of an individual in the Texas Military Forces, for purposes of confirming survivor eligibility for benefit payments under Chapter 615 of the Texas Government Code.
(b) In a determination of whether the survivor of a decedent listed under Section 615.003 is eligible for benefits under Chapter 615, any reasonable uncertainty arising from the circumstances of the individual's death shall be resolved in favor of the payment of benefits to the survivor.
§138.3.Filing the Claim.
(a) Upon determination by the Department that assistance is payable to an eligible survivor under Section 615.024 of the Texas Government Code, and verification of beneficiary information, the Department shall certify the following information on agency letterhead and submit the certification to Employees Retirement System (ERS) to initiate the payment process:
(1) Name of decedent;
(2) Date of death;
(3) Status of decedent at the time of death (i.e., State Active Duty and Specific Mission);
(4) Line of Duty determination: Yes/No; and
(5) Certification of Eligibility: Yes/No
(b) The Adjutant General or designee will serve as the certifying official for purposes of the Department certification.
(c) In addition to the Department certification, the following documentation must be submitted to ERS:
(1) a copy of the decedent's state active duty orders;
(2) a certified copy of the death certificate;
(3) a copy of the decedent's United States Department of Defense Form DD-93 for an individual in the Texas National Guard; or for the Texas State Guard, a Texas Military Department Record of Emergency Data form that provides emergency data comparable to that on the United States Department of Defense Form DD-93; and
(4) the name(s) and contact information for the beneficiary or beneficiaries to receive payment.
(d) Claims submitted to ERS by the Department will be processed for payment to the eligible beneficiary in accordance with Texas Government Code Chapter 615 and, as applicable, ERS Rule related to the filing of claims, 75 TAC §75.1.
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 9, 2023.
TRD-202303761
Shelia Bailey Taylor
Director of State Administration
Texas Military Department
Earliest possible date of adoption: November 19, 2023
For further information, please call: (512) 782-3390
CHAPTER 463. ADVISORY COMMITTEES, PRACTICE AND PROCEDURES
37 TAC §§463.1, 463.3, 463.5, 463.7, 463.9, 463.11, 463.13, 463.15, 463.17
The Texas Commission on Fire Protection (the Commission) proposes a new chapter, 37 Texas Administrative Code Chapter 463, Advisory Committees, Practice and Procedures, concerning §463.1 Objective, §463.3 General, §463.5 Eligibility, §463.7 Terms, §463.9 Meetings, §463.11 Limitation of Powers, §463.13 Testimony, §463.15 Expulsion, and §463.17 Abolishment Date.
BACKGROUND AND PURPOSE
The proposed new chapter aims to establish rules governing the Commission's advisory committees under Texas Government Code §419.908(f). This new chapter and rules implement a Sunset Commission's recommendation and Senate Bill 709 as passed by the 87th legislature. The chapter enhances transparency by setting out the objectives of the committees, and eligibility for membership, creates staggered terms and term limits, open meeting requirements, limits committees to recommendations only, and addresses public testimony, expulsion, and abolishment. The new chapter ensures each committee continues to achieve the objectives set out by law and rule, and requires the Commission to evaluate the need for the committee and continuation of each committee every four years.
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 new chapter is 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 proposed new chapter is 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 new chapter is 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 as a result of implementing the proposed new chapter. Therefore, no economic impact statement or regulatory flexibility analysis is required under Texas Government Code §2006.002.
GOVERNMENT GROWTH IMPACT STATEMENT
The agency has determined under Texas Government Code §2006.0221 that during the first five years the proposed new chapter is 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 new chapter does 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 new chapter does 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 new chapter 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 new chapter is proposed under Texas Government Code §419.008(f), which provides the Commission may appoint an advisory committee to assist it in the performance of its duties, and under Texas Government Code §419.008(a), which provides the Commission may adopt rules for the administration of its powers and duties. Additionally, §463.7, Terms, is proposed pursuant to Texas Government Code §419.008(f), which provides members appointed under chapter 419 shall serve six-year staggered terms but may not be appointed to more than two consecutive terms.
CROSS-REFERENCE TO STATUTE
The new chapter also implements requirements of Texas Government Code §2110.005, and §2110.008, by setting out by rule the purpose of the committee, the manner the committee will report to the Commission, and the duration of the committees. No other statutes, articles, or codes are affected by these amendments.
§463.1.Objective.
(a) The Texas Commission on Fire Protection (TCFP) is organized to aid in the protection of the lives and property of Texas citizens through the development and enforcement of recognized professional standards for individuals and the fire service. To achieve the goals of TCFP, each committee will evaluate, make recommendations, and issue reports to the Commission on any issue in the committee's purview. Committees shall represent TCFP in advocacy for or opposition to projects and issues upon the specific authority of the Commission or such authority as may be clearly granted upon general powers delegated by the Commission to that committee. In this Chapter, "Commission" refers to the governing body, and TCFP refers to the state agency.
(b) The Commission has established a Firefighter Advisory Committee, Curriculum and Testing Committee, and Health and Wellness Committee in compliance with the Texas Government Code §2110.008, Duration of Advisory Committees. These committees will continue for four years from the date of creation and may be continued following a vote of the Commission to extend each of the established committees. The Commission may create short-term ad hoc working groups for specific purposes in accordance with this rule. The committee's purpose, eligibility, terms, and meeting procedures are identified in this rule.
§463.3.General.
(a) The Commission may convene committees that are deemed to be in the best interest of the TCFP and its mission.
(b) All committees shall be subject to and governed by these rules.
(c) The approved committee shall elect a member of their committee as the chairperson who may remain in this position for two (2) years before reappointment or until such time as a new person is appointed as the Chairperson.
(d) Committees should be composed of a reasonable odd number of members, with a minimum of nine and a maximum of 15 members.
(e) The committees shall meet at least twice each calendar year at the call of either the committee chairperson or the Commission.
(f) All committees shall be reviewed for relevance by the Commission every odd year and will either be renewed or discontinued.
(g) The committee chairperson may form ad hoc working groups when, in the judgment of the chair, it will enhance or provide guidance for a specific purpose or time period. The committee chairperson may determine working group selection, but membership is limited only to ad hoc and will disband once the purpose has been met.
(h) Annually each committee chairperson will present to the Commission an end-of-year status report.
(i) Meetings to deliberate a test item or information related to a test item do not require an open meeting per Texas Government Code §551.088.
§463.5.Eligibility.
(a) Any person, association, corporation, partnership, or other entity having an interest in the above-recited objectives shall be eligible for membership.
(b) Committee composition should have representatives from each fire protection stakeholder group, with consideration of department size, region, and mission.
(c) Vacant positions will be announced. Interested, qualified candidates may apply for committee appointments. A candidate selection committee may be formed to assist in the application process and may make recommendations for appointments. The list of candidates will then be presented to the Commission during its next meeting for consideration. The Commission will appoint committee members and select alternates at the same time in the event committee members cannot fulfill their tenure and/or replacement members are needed. Terms shall begin immediately following Commission approval. Interim appointments may be made to complete vacated, unexpired terms.
§463.7.Terms.
(a) Committee members shall be appointed to serve six-year terms of office, with the intent to stagger and to ensure continuity of membership from year to year. Committee members serve six-year terms and may serve consecutively; however, after a second six-year term, the member will not be eligible for another term until after a lapse of two years. For all committees, the member positions will be numbered 1-11.
Figure: 37 TAC §463.7(a) (.pdf)
(b) The current holdover member serving in positions 1-11 will expire on the last day of the month before the initial appointments commence. Current holdover members are eligible to apply for initial appointments.
(c) In the event that a member cannot fulfill a term, a new member shall be appointed to complete the term. This does not count as the individual's first term.
§463.9.Meetings.
(a) Committee chairperson or a designated committee member when the chairperson is unavailable shall conduct all committee meetings.
(b) Committee meetings should be held in Austin, Texas. Committee meetings cannot be held outside of the state of Texas.
(c) Committees shall post meeting times, locations, and agendas with the Secretary of State in accordance with the Open Meetings Act, Texas Government Code Chapter 551. Committees shall keep minutes in accordance with the Open Meetings Act. When feasible, committees may allow members of the public to participate in a meeting from a remote location by videoconference call pursuant to Texas Government Code §551.127(k) to encourage access and participation throughout the state.
(d) Committee chairpersons may limit discussion times if, in the opinion of the chairperson, it is warranted. Participants who fail to follow the above rules may be subject to removal from the meeting.
(e) Committees may meet by videoconference call, but only if they follow the requirements of Texas Government Code §551.127. The committee must still have a physical location for the public to attend. The member presiding over the meeting must attend in person, while other members and staff may attend remotely.
§463.11.Limitation of Powers.
No action by any committee chairperson or its members shall be binding upon, or constitute an expression of, the policy of TCFP until it has been approved or ratified by the Commission. It shall be the function of the committees to evaluate, make recommendations, and report only to the Commission. Committees shall represent TCFP in advocacy for or opposition to projects and issues upon the specific authority of the Commission or such authority as may be clearly granted upon general powers delegated by the Commission to that committee.
§463.13.Testimony.
Once committee action has been approved by the Commission, testimony and/or presentations may be given and made before stakeholders, governmental agencies, or any other entity as deemed appropriate by the chairperson of the Commission.
§463.15.Expulsion.
After written notice and a hearing before the Commission, any committee member may be expelled from a committee for conduct that is unbecoming or prejudicial to the aims or repute of TCFP or expelled for lack of attendance, unless excused, to more than half of the scheduled committee meetings in a calendar year.
§463.17.Abolishment Date.
Any advisory committee created by the Commission will be abolished after four years from the date of creation unless it is re-established by the Commission prior to the abolishment date.
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 6, 2023.
TRD-202303718
Mike Wisko
Agency Chief
Texas Commission on Fire Protection
Earliest possible date of adoption: November 19, 2023
For further information, please call: (512) 936-3841