PART 5. STATE BOARD OF DENTAL EXAMINERS
CHAPTER 101. DENTAL LICENSURE
The State Board of Dental Examiners (Board) adopts amendments to §§101.1 - 101.7 and 101.9, concerning dental licensure without changes to the proposed text as published in the March 15, 2013, issue of the Texas Register (38 TexReg 1762) and will not be republished.
The amendments are adopted to reconcile language inconsistencies in Chapters 101 and 103 and to clarify licensure procedures to increase efficiency in the licensing process.
Texas Dental Association commented in favor of the proposed amendments, contending that the rules clarify the Board's considerations when reviewing an application for dental licensure and reconcile inconsistent language throughout the chapter. The Board agrees.
The amendments are adopted under Texas Occupations Code §254.001(a) which provides authority for the Board to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety.
No other statutes, articles, or codes are affected by the amendments.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 9, 2013.
TRD-201301858
Glenn Parker
Executive Director
State Board of Dental Examiners
Effective date: May 29, 2013
Proposal publication date: March 15, 2013
For further information, please call: (512) 475-0989
The State Board of Dental Examiners (Board) adopts amendments to §§103.1 - 103.8, concerning dental hygiene licensure. Section 103.1 and §§103.3 - 103.8 are adopted without changes to the proposed text as published in the March 15, 2013, issue of the Texas Register (38 TexReg 1768) and will not be republished. Section 103.2 is adopted with changes and will be republished.
The amendments are adopted to reconcile language inconsistencies in Chapters 101 and 103 and to clarify licensure procedures to increase efficiency in the licensing process.
Texas Dental Association commented in favor of the proposed amendments, contending that the rules clarify the Board's considerations when reviewing an application for dental hygiene licensure and reconcile inconsistent language throughout the chapter. The Board agrees.
The Board discussed an amendment to §103.2(c)(2) changing the required hours from 80 to 150. The Board voted and passed this amendment in a public hearing prior to the publishing the proposed rule on March 15, 2013.
The amendments are adopted under Texas Occupations Code §254.001(a) which provides authority for the Board to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety.
No other statutes, articles, or codes are affected by the amendments.
§103.2.Licensure by Examination.
(a) In addition to the general qualifications for licensure contained in §103.1 of this chapter (relating to General Qualifications for Licensure), an applicant for dental hygienist licensure by examination must present proof that the applicant has taken and passed the appropriate clinical examination administered by a regional examining board designated by the Board.
(b) Designated regional examining boards.
(1) The following regional examining boards have been designated as acceptable by the Board as of the effective dates shown:
(A) Western Regional Examining Board, January 1, 1994;
(B) Central Regional Dental Testing Service, January 1, 2002;
(C) Northeast Regional Board, January 1, 2005;
(D) Southern Regional Testing Agency, January 1, 2005; and
(E) Council of Interstate Testing Agencies (CITA), January 1, 2009.
(2) Examination results will be accepted for five years from the date of the examination.
(c) Remediation.
(1) If an applicant for Texas dental hygienist licensure fails three dental hygiene clinical examination attempts, the applicant must complete 40 hours of clinical remediation through a CODA-accredited dental hygiene program before approval will be issued to take another clinical examination.
(2) If an applicant fails four or more dental hygiene clinical examination attempts, the applicant must complete 150 hours of clinical remediation through a CODA-accredited dental hygiene program before approval will be issued to take another clinical examination.
(3) All programs of clinical remediation require prior approval by the Board. Applicants will be responsible for locating, identifying and obtaining approval from the Board prior to registration for any program.
(4) Re-examination must be accomplished within 18 months following the date the Board approves a remediation program for the applicant.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 9, 2013.
TRD-201301862
Glenn Parker
Executive Director
State Board of Dental Examiners
Effective date: May 29, 2013
Proposal publication date: March 15, 2013
For further information, please call: (512) 475-0989
SUBCHAPTER A. PROFESSIONAL RESPONSIBILITY
The State Board of Dental Examiners (Board) adopts an amendment to §108.8, concerning records of the dentist without changes to the proposed text as published in the December 28, 2012, issue of the Texas Register (37 TexReg 10073) and will not be republished.
The amendment is adopted to include an oral pathology examination as part of a dental record.
No comments were received regarding adoption of the amendment.
The amendment is adopted under Texas Occupations Code §254.001(a), which provides authority for the Board to adopt rules necessary to perform its duties and ensure compliance with state law relating to the practice of dentistry to protect the public health and safety.
No other statutes, articles, or codes are affected by the amendment.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 9, 2013.
TRD-201301857
Glenn Parker
Executive Director
State Board of Dental Examiners
Effective date: May 29, 2013
Proposal publication date: December 28, 2012
For further information, please call: (512) 475-0989
CHAPTER 273. GENERAL RULES
The Texas Optometry Board adopts amendments to §273.5, concerning Clinical Instruction and Practice - Limited License for Clinical Faculty, without change to the proposed text published in the March 1, 2013, issue of the Texas Register (38 TexReg 1331).
The amendments clarify the limitations on the participation of optometry students in clinical training. With the opening of a new optometry school in Texas, the agency has determined that this is the appropriate time to set guidelines for students and faculty of optometry schools as to time, place and supervision required for clinical instruction and practice.
No comments were received.
The amendment is adopted under the Texas Optometry Act, Texas Occupations Code, §351.151 and §351.260. No other sections are affected by the amendments.
The Texas Optometry Board interprets §351.151 as authorizing the adoption of procedural and substantive rules for the regulation of the optometric profession. The agency interprets §351.260 as defining parameters of clinical training.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 6, 2013.
TRD-201301796
Chris Kloeris
Executive Director
Texas Optometry Board
Effective date: May 26, 2013
Proposal publication date: March 1, 2013
For further information, please call: (512) 305-8502
CHAPTER 535. GENERAL PROVISIONS
SUBCHAPTER G. MANDATORY CONTINUING EDUCATION
The Texas Real Estate Commission adopts an amendment to §535.75, concerning Education Standards Advisory Committee, without changes to the proposed text as published in the March 1, 2013, issue of the Texas Register (38 TexReg 1332) and will not be republished.
The amendment changes the expiration date for the term of appointments and expands the term officers serve to two years.
The reasoned justification for the rule is effective leadership and committee continuity.
No comments were submitted on the rule as proposed.
The amendment is adopted under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to adopt and enforce rules necessary to administer Chapters 1101 and 1102; and to establish standards of conduct and ethics for its licensees to fulfill the purposes of Chapters 1101 and 1102 and ensure compliance with Chapters 1101 and 1102.
The statute affected by this adoption is Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the amendment.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 10, 2013.
TRD-201301887
Loretta R. DeHay
General Counsel
Texas Real Estate Commission
Effective date: May 30, 2013
Proposal publication date: March 1, 2013
For further information, please call: (512) 936-3092
The Texas Real Estate Commission adopts amendments to §535.144, concerning When Acquiring or Disposing of Own Property or Property of Spouse, Parent or Child, without changes to the proposed text as published in the March 1, 2013, issue of the Texas Register (38 TexReg 1332) and will not be republished.
The amendments to §535.144 streamline the rule for clarity and provide a definition of "license holder" for purposes of the section to include the license holder's spouse, which is in the existing rule; a business entity in which the licensee is more than a 10% owner, which is in the existing rule; and a trust of which the licensee is the trustee or of which the licensee or the licensee's spouse, parent or child is a beneficiary. The trust provisions clarify that the commission has jurisdiction under §1101.652(a)(3) of the Act over transactions in which licensees act on behalf of trusts in which they or family members have an interest. Family trusts, which are the types of trusts most often encountered in residential transactions, are typically used to hold title or ownership to real estate and other assets as an alternative to probate.
The reasoned justification for the rule is clarification of the agency's jurisdiction over licensees engaging in real estate transactions on behalf of a buying or selling entity in which the licensee has an ownership or beneficial interest.
No comments were submitted on the rule as proposed.
The amendments are adopted under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to adopt and enforce rules necessary to administer Chapters 1101 and 1102; and to establish standards of conduct and ethics for its licensees to fulfill the purposes of Chapters 1101 and 1102 and ensure compliance with Chapters 1101 and 1102.
The statute affected by this adoption is Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the amendments.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 10, 2013.
TRD-201301888
Loretta R. DeHay
General Counsel
Texas Real Estate Commission
Effective date: May 30, 2013
Proposal publication date: March 1, 2013
For further information, please call: (512) 936-3092
The Texas Real Estate Commission (TREC) adopts amendments to §535.206, concerning the Texas Real Estate Inspector Committee, without changes to the proposed text as published in the March 1, 2013, issue of the Texas Register (38 TexReg 1333) and will not be republished.
The amendments reduce the term served by public members of the committee from six years to two years. There are no term limits in the rule; therefore, members could serve for additional terms if reappointed by the Commission. The rule was recommended by the Texas Real Estate Inspector Committee, an advisory committee of six professional inspectors and three public members appointed by TREC (Committee).
The reasoned justification for the rule is increased ability to attract and retain public members on the Committee.
No comments were submitted on the rule as proposed.
The amendments are adopted under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to adopt and enforce all rules necessary to administer Chapter 1102.
The statutes affected by this adoption are Texas Occupations Code, Chapters 1101 and 1102. No other statute, code or article is affected by the amendments.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 13, 2013.
TRD-201301942
Kerri Lewis
Deputy General Counsel
Texas Real Estate Commission
Effective date: June 2, 2013
Proposal publication date: March 1, 2013
For further information, please call: (512) 936-3092
The Texas Real Estate Commission adopts amendments to §535.223, concerning Standard Inspection Report Form, with non-substantive changes to the proposed text as published in the March 1, 2013, issue of the Texas Register (38 TexReg 1334) and with one non-substantive change to the new Property Inspection Form (REI 7-3) adopted by reference in the rule. The differences between the rule as published and as adopted are the deletion of the word "and" in the first sentence, changing "they are" to "it is" in paragraph (3)(B) and deleting "s" from the word "forms" in the last sentence of paragraph (6)(F). The difference between the REI 7-3 as published and as adopted was that the reference to carbon monoxide alarms in the section on Texas Real Estate Consumer Notice Concerning Hazards or Deficiencies was made a separate bullet point for malfunctioning of that alarm. This change was made in response to a comment received to make REI 7-3 consistent with the inspector standards of practice as re-proposed under separate rule (Standards). The adoption takes effect January 1, 2014.
The amendments were previously proposed and published in the November 23, 2012, issue of the Texas Register (37 TexReg 9278) but were withdrawn on February 12, 2013, for re-proposal. The amendments are adopted to track revisions to the Standards. The amendments also clarify how the form is to be used by an inspector and in what ways an inspector is authorized to modify the form. The amendments provide an additional exemption for inspectors conducting inspections on single component systems, which are defined by the rule. The amendments adopt by reference a new Property Inspection Form (REI 7-3) and remove the requirements for the two current forms, REI 7A1 and REI 7-2.
The amendments have been recommended by the Texas Real Estate Inspector Committee, an advisory committee of six professional inspectors and three public members appointed by TREC, to correspond to proposed revisions to the Standards that are also adopted and explained in this issue of the Texas Register.
The revisions to the rule and to Form REI 7-3 as adopted do not change the nature or scope so much that the rule or form could be deemed a different rule or form. The rule and form as adopted do not affect individuals other than those contemplated by the form as proposed. The rule and form as adopted do not impose more onerous requirements than the proposed rule and form.
The reasoned justification for the rule will be increased clarity for inspectors and consumers alike regarding the use of a standard inspection report form that tracks the newly adopted revised Standards.
Comments on the amendments or Form REI 7-3 adopted by reference in the amendments were received from two licensed inspectors.
One commenter thought that the Texas Real Estate Consumer Notice concerning Hazards or Deficiencies (form OP-I) should remain as a stand-alone form and not be incorporated into Form REI 7-3. Another commenter approved the addition of this notice in Form REI 7-3. The Texas Real Estate Inspector Committee reviewed these comments and recommended that the notice remain in Form REI 7-3 to ensure that consumers receive the notice from inspectors but that the optional OP-I form also remain available for use by inspectors who want to give it for special emphasis or for use by other real estate licensees. The Commission agrees.
One commenter thought that there was a discrepancy with the definition of general deficiency and specificity regarding the location of GFCI devices in the Standards and Form REI 7-3, stating they were more clearly defined in Form REI 7-3. The commenter also thought that there was discrepancy between the Standards and Form REI 7-3 with the form stating inspectors will report the lack of that device while the Standards do not require the inspector to report the lack of that device, only to report to report a defect with an existing device. The Commission agrees that the carbon monoxide alarm item in Form REI 7-3 could be read to require reporting the lack of such an alarm and clarified the form to indicate that only the malfunctioning of the alarm is a deficiency in order to be consistent with the Standards.
The amendments are adopted under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties and to establish standards of conduct and ethics for its licensees in keeping with the purpose and intent of the Act to ensure compliance with the provisions of the Act.
The statutes affected by this adoption are Texas Occupations Code, Chapters 1101 and 1102. No other statute, code or article is affected by the amendments.
§535.223.Standard Inspection Report Form.
The Texas Real Estate Commission adopts by reference Property Inspection Report Form REI 7-3, approved by the Commission for use in reporting inspections results. This document is published by and available from the Texas Real Estate Commission website: www.trec.texas.gov, or by writing to the Commission at Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
(1) Except as provided by this section, inspections performed for a prospective buyer or prospective seller of substantially complete one-to-four family residential property shall be reported on Form REI 7-3 adopted by the Commission ("the standard form").
(2) Inspectors may reproduce the standard form by computer or from printed copies obtained from the Commission. Except as specifically permitted by this section, the inspector shall reproduce the text of the standard form verbatim and the spacing, borders and placement of text on the page must appear to be identical to that in the printed version of the standard form.
(3) An inspector may make the following changes to the standard form:
(A) delete the line for name and license number, of the sponsoring inspector, if the inspection was performed solely by a professional inspector;
(B) change the typeface; provided that it is no smaller than a 10 point font;
(C) change the color of the typeface and checkboxes;
(D) use legal sized (8-1/2" by 14") paper;
(E) add a cover page to the report form;
(F) add footers to each page of the report except the first page and may add headers to each page of the report;
(G) place the property identification and page number at either the top or bottom of the page;
(H) add subheadings under items, provided that the numbering of the standard items remains consistent with the standard form;
(I) list other items in the corresponding appropriate section of the report form and additional captions, letters, and check boxes for those items;
(J) delete inapplicable subsections of Section VI., Optional Systems, and re-letter any remaining subsections;
(K) delete Subsection L., Other, of Section I., Structural Systems; Subsection E., Other of Section IV, Plumbing Supply, Distribution Systems and Fixtures and Subsection I., Other of Section V., Appliances;
(L) allocate such space in the "Additional Information Provided by the Inspector" section and in each of the spaces provided for comments for each inspected item as the inspector deems necessary, attach additional pages of comments to the report, or both; and
(M) attach additional pages to the form if:
(i) it is necessary to report the inspection of a component, or system not contained in the standard form; or
(ii) the space provided on the form is inadequate for a complete reporting of the inspection.
(4) The inspector shall renumber the pages of the form to correspond with any changes made necessary due to adjusting the space for comments or adding additional items and shall number all pages of the report, including any addenda.
(5) The inspector shall indicate, by checking the appropriate boxes on the form, whether each item was inspected, not inspected, not present, or deficient and explain the findings in the corresponding section in the body of the report form.
(6) This section does not apply to the following:
(A) re-inspections of a property performed for the same client;
(B) inspections performed for or required by a lender or governmental agency;
(C) inspections for which federal or state law requires use of a different report;
(D) quality control construction inspections of new homes performed for builders, including phased construction inspections, inspections performed solely to determine compliance with building codes, warranty or underwriting requirements, or inspections required by a municipality and the builder or other entity requires use of a different report, and the first page of the report contains a notice either in bold or underlined reading substantially similar to the following: "This report was prepared for a builder or other entity in accordance with the builder's requirements. The report is not intended as a substitute for an inspection of the property by an inspector of the buyer's choice. Standard inspections performed by a Texas Real Estate Commission licensee and reported on Texas Real Estate Commission promulgated report forms may contain additional information a buyer should consider in making a decision to purchase." If a report form required for use by the builder or builder's employee does not contain the notice, the inspector may attach the notice to the first page of the report at the time the report is prepared by the inspector;
(E) an inspection of a building or addition that is not substantially complete; or
(F) inspections of a single system or component as outlined in clause (ii) of this subparagraph, provided that the first page of the report contains a notice either in bold or underlined reading substantially similar to the following: "This report was prepared for a buyer or seller in accordance with the client's requirements. The report addresses a single system or component and is not intended as a substitute for a complete standard inspection of the property. Standard inspections performed by a Texas Real Estate Commission licensee and reported on a Texas Real Estate Commission promulgated report form may contain additional information a buyer should consider in making a decision to purchase."
(i) If the client requires the use of a report form that does not contain the notice, the inspector may attach the notice to the first page of the report at the time the report is prepared by the inspector.
(ii) An inspection is considered to be of a single system or component if the inspection only addresses one of the following or a portion thereof:
(I) foundation;
(II) framing/structure, as outlined in §535.213(e)(2) of this title (relating to Approval of Courses in Real Estate Inspection);
(III) building enclosure;
(IV) roof system;
(V) plumbing system;
(VI) electrical system;
(VII) HVAC system;
(VIII) a single appliance; or
(IX) a single optional system as stated in the Standards of Practice.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 13, 2013.
TRD-201301943
Kerri Lewis
Deputy General Counsel
Texas Real Estate Commission
Effective date: January 1, 2014
Proposal publication date: March 1, 2013
For further information, please call: (512) 936-3092
The Texas Real Estate Commission (TREC) adopts the repeal of §§535.227 - 535.233, concerning inspector standards of practice, without changes to the proposal as published in the March 1, 2013, issue of the Texas Register (38 TexReg 1335) and will not be republished. The adoption takes effect January 1, 2014.
The repeal is adopted because the subjects addressed in these sections will be covered in new §§535.227 - 535.233, which TREC is simultaneously adopting as part of the Real Estate Inspector Committee comprehensive review and recommendations regarding inspector standards of practice. The Texas Real Estate Inspector Committee is an advisory committee of six professional inspectors and three public members appointed by TREC.
The reasoned justification for the repeal is increased clarity for inspectors and consumers alike, as well as standards that more accurately reflect current technology, codes, and practices that form the basis of many of the standards of practice that will be adopted to replace these existing rules.
No comments were received on the repeal.
The repeal is adopted under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties and to establish standards of conduct and ethics for its licensees in keeping with the purpose and intent of the Act to ensure compliance with the provisions of the Act.
The statutes affected by this repeal are Texas Occupations Code, Chapters 1101 and 1102. No other statute, code or article is affected by the repeal.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 13, 2013.
TRD-201301944
Kerri Lewis
Deputy General Counsel
Texas Real Estate Commission
Effective date: January 1, 2014
Proposal publication date: March 1, 2013
For further information, please call: (512) 936-3092
The Texas Real Estate Commission (TREC) adopts new §§535.227 - 535.233, concerning Standards of Practice, without changes to the proposed text as published in the March 1, 2013, issue of the Texas Register (38 TexReg 1336) and will not be republished. The adoption takes effect January 1, 2014.
The new rules are adopted to update and clarify the current Standards and Practice (Standards) for real estate inspectors. The new rules were previously proposed and published in the November 23, 2012, issue of the Texas Register (37 TexReg 9281) but were withdrawn on February 12, 2013. The new rules were re-proposed following revisions made pursuant to comments received after the previous publication. The new rules make several non-substantive changes to the Standards by making them easier to read and providing a clearer understanding of what an inspector is and is not required to inspect and report. In addition, the rules make several substantive changes to the Standards to encourage a more performance-based approach to real estate inspections. The new rules are adopted following a comprehensive review of the Standards by the Texas Real Estate Inspector Committee, an advisory committee of six professional inspectors and three public members appointed by TREC. Both the substantive and non-substantive revisions were recommended by the Committee.
The substantive changes to the Standards are as follows:
New §535.227(a) expands the current definition of "Accessible" to clarify that an item is not accessible if the inspector has to climb over obstacles to gain access to it; adds a definition for "Component;" expands the current definition of "Inspect;" and clarifies that an inspector is required to report deficiencies "as specified by these standards of practice;" expands the definition of "Performance;" adds a definition for "Substantially completed;" and adds a definition for "Technically exhaustive." Subsection (b)(3) clarifies the intent and limitations of the Standards; specifies that an inspector is not required to: inspect sub-surface drainage systems; determine compatibility, product lawsuits, listing, testing or protocol authority; determine the presence, absence or risk of "Chinese drywall;" determine the cause or source of a condition; verify sizing efficiency or adequacy of a gutter or downspout system; or light a pilot light.
New §535.228(a) amends current rule language relating to crawl space ventilation and drainage to focus on the performance of the item. It also removes and consolidates redundant exemplars found in the current Standards. Subsection (b) amends current rule language relating to grading and draining around the foundation to focus on the performance of the item. Subsection (c) removes the specific requirement that an inspector report as deficient a roof covering that is not appropriate for the slope of the roof. It also specifies that an inspector is not required to exhaustively examine all fasteners and adhesions. Subsection (d) amends current rule language relating to attic space ventilation to focus on the performance of the item. In addition to those items currently required to be inspected relating to exterior walls and windows, subsection (f) requires an inspector to report deficiencies in weather-stripping, gaskets or other air barrier materials. It also specifies that an inspector is not required to provide an exhaustive list of locations of deficiencies and water penetrations. Subsection (j) removes the requirement that an inspector report deficiencies in visible footings, piers, posts, pilings, joists, decking, water proofing at interfaces, flashing, surfaces coverings, and attachment points of porches, decks, balconies and carports.
New §535.229(a) consolidates several redundant ground and bonding items. It also removes the requirement that inspectors report as deficient the absence of arc-fault circuit interrupters. Subsection (b) requires an inspector to inspect installed carbon monoxide alarms. The new rule updates the ground-fault circuit interruption language and moves the doorbell language from its current location under "appliances" to §535.229(b). It also removes and consolidates redundant exemplars found in the current Standards for switches and receptacles and clarifies that an inspector is not required to remove the covers of junction, fixture, receptacle or switch boxes unless specifically required to do so by the Standards.
New §535.230(a) clarifies the intent of the Standards regarding heating equipment, including expanding the current rule language relating to inadequate access and clearances, gas shut off valves, and gas appliance connectors, to provide more specificity. The new rules require an inspector to report deficiencies in the performance of a heat pump in electrical units. Subsection (b) clarifies the intent of the Standards regarding cooling equipment and other evaporative coolers, including expanding the current rule language relating to inadequate access and clearances to provide more specificity. Subsection (c) removes the requirement to report winterized units that are drained and shut down and consolidates several exemplars found in the current Standards. Subsection (d) removes several items found in the current Standards, deemed to be unrealistic for an inspector to inspect. Subsection (e) clarifies at what outdoor temperature an inspector is required to operate a heat pump and specifies that an inspector is not required to verify the tonnage match of indoor coils and outside coils or condensing units.
New §535.231 amends current rule language relating to static water pressure, fixtures and faucets not connected to appliances and fixture drains to focus on the performance of the item. The rule also removes and consolidates several exemplars found in the current Standards. Subsection (b) clarifies the intent of the Standards regarding water heaters, including expanding the current rule language relating to inadequate access and clearances, gas shut off valves, and gas appliance connectors, to provide more specificity. The rule also removes and consolidates several exemplars found in the current Standards. Subsection (c) clarifies the intent of the Standards regarding hydro-massage therapy equipment, including expanding the current rule language relating to inadequate access and the performance and condition of components.
New §535.232 amends current rule language relating to several appliances to focus on the performance of the item. The rule changes the titles of several subsections of current §535.232 to bring them in line with industry terminology. The rule also removes and consolidates several exemplars related to various appliances found in the current Standards. Specifically, the rule adds several new requirements for ranges, cooktops, and ovens, including requiring the inspector to report as deficient combustible material within a certain area of cooktop burners, certain limitations regarding gas shutoff valves or connectors, and deficiencies in mounting and performance. The rule removes the requirement that an inspector inspect trash compactors, adds a requirement under "Garage door operators" that inspector report as deficient installed photoelectric sensors located more than six inches above the garage floor, and moves door bells requirements to new §535.229(b).
New §535.233 removes the Outdoor Cooking Equipment section, Gas Supply section, Other Built-In Appliance section and Whole House Vacuum System section. Paragraph (1) changes the titles of several paragraphs of §535.233 to bring them in line with industry terminology. The new rule clarifies the intent of the Standards regarding landscape irrigation (sprinkler) systems, including requiring an inspector to report as deficient: inoperative zone valves, the absence of shut-off valves between the water meter and backflow device, and deficiencies in the performance of the water emission devices, such as sprayer heads, rotary sprinkler heads, bubblers or drip lines. The new rule specifies that an inspector must report static water pressure and is not required to inspect sizing and effectiveness of backflow prevention devices. Paragraph (2) requires an inspector to report as deficient the presence of a single blockable main drain (potential entrapment hazard), the absence of ground-fault circuit interrupter protection devices and deficiencies in lighting fixtures. The rule specifies that an inspector is not required to disassemble filters or determine the effectiveness of entrapment covers. Paragraph (3) requires an inspector to report as deficient the absence of ground-fault circuit interrupter protection devices in grade-level portions of unfinished accessory buildings used for storage or work areas, boathouses, and boat hoists. Paragraph (5) requires an inspector to report on the location of the distribution field in a private septic system.
The reasoned justification for the new rules is increased clarity for inspectors and consumers alike, as well as standards that more accurately reflect current technology, codes, and practices that form the basis of many of the Standards.
Four licensed inspectors sent comments on the proposed new rules.
One commenter objected to any changes in the Standards believing the Standards were being changed to ASHI standards which he felt were below the current Standards. The Commission respectfully disagrees with this commenter that the new rules are based on ASHI and cite the reasoned justification set out above as the need for the change to the existing Standards.
One commenter did not like the use of the word "performance" in conjunction with the Standards or the report stating that it would allow many items that are not functioning to some degree to not receive comments in the report. The Commission respectfully disagrees with this comment. Although the definition of "performance" was clarified in the new rules, the definition has been a part of the Standards for a long time. A performance-based approach to real estate inspections is what was contemplated by the legislature in Chapter 1102 and is in line with national industry standards.
Another commenter suggested in the areas of the Standards dealing with foundation crawl space, grade and drainage and roof structures and attic that the phrase "appears to be performing" would better serve the Texas consumer than simply reporting whether the item was "performing" or not. The Texas Real Estate Inspector Committee reviewed this comment and determined that the additional phrase was not helpful, adding no value to the information the inspector needs to provide.
This same commenter wanted "motor bonding" to be specifically included in the section on hydro-massage therapy equipment. The Texas Real Estate Inspector Committee reviewed this comment and determined that "motor bonding" was covered in the Standards under electrical systems and to repeat it here would be unnecessarily redundant. The commenter also wanted the new rules to require inspectors to report the absence of carbon monoxide detectors as a deficiency. The Texas Real Estate Inspector Committee reviewed this comment and determined that the Standards requirement that the inspector note a deficiency if there is a defect with an existing carbon monoxide detection device, but not note the absence of such a device, was sufficient since carbon monoxide detection devices are not required to be in all homes.
Three commenters made suggested changes to insert specific technical requirements in the new rules regarding smoke detector devices, water heaters, dryer exhaust systems, and electrical systems (specifically referring to the National Electric Code standards). The Commission respectfully declines to make these changes. All of these technical change comments were reviewed by the Texas Real Estate Inspector Committee and they determined that these comments were trying to impose building, electrical or plumbing code or manufacturer's installment requirements into the Standards. Under Texas Occupations Code, §1102.001(9), a real estate inspection is defined as an "opinion as to the condition of the improvements to real property, including structural items, electrical items, mechanical systems, plumbing systems, or equipment." Additionally, a real estate inspector is not required by Chapter 1102 to be code-certified for any system. These provisions are evidence that the legislature did not intend for the real estate inspection for home buyers and sellers to be code-based and therefore the Commission declines to make revisions based on those comments.
One commenter was concerned that the new rules would require an inspector to test Arc Fault breakers (AFCI) when the house was occupied. Another commenter wanted inspectors to report the lack of AFCIs. The Texas Real Estate Inspector Committee intentionally removed the necessity to report on the lack of AFCIs, but noted that under the new rules, if AFCIs are present, inspectors have to check their performance unless the house is occupied, in which case, they do not.
One commenter agreed with the removal of the requirement to test the pressure relief valve but felt that other matters related to the pressure relief valve such as absence of or deficiencies in the temperature and pressure relief valve should not have been deleted. The Texas Real Estate Inspector Committee reviewed this comment and determined that the Standard related to this area was clear and did not need to be expanded. The commenter also was concerned that the new rules no longer required inspectors to check for gas leaks on furnaces. The Texas Real Estate Inspector Committee reviewed this comment and determined that the Standards do still require an inspector to check for gas leaks on furnaces. Finally, this commenter requested a revision to the Standard regarding water heaters (which was not changed from the prior version of the Standards) stating that it was outdated and not applicable to most modern water heaters and tankless heaters which cannot be opened to inspect flame elements. The Texas Real Estate Inspector Committee reviewed this comment and determined that the Standard needed to remain to deal with older water heaters still found in homes. They also stated that the Standards already do not require an inspector to open or inspect a water heater flame where removing the cover would void a manufacturer's warranty or was not constructed to be removed.
The new rules are adopted under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties and to establish standards of conduct and ethics for its licensees in keeping with the purpose and intent of the Act to ensure compliance with the provisions of the Act.
The statutes affected by these new rules are Texas Occupations Code, Chapters 1101 and 1102. No other statute, code or article is affected by the new rules.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 13, 2013.
TRD-201301945
Kerri Lewis
Deputy General Counsel
Texas Real Estate Commission
Effective date: January 1, 2014
Proposal publication date: March 1, 2013
For further information, please call: (512) 936-3092
CHAPTER 851. TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS LICENSING AND ENFORCEMENT RULES
The Texas Board of Professional Geoscientists (Board) adopts amendments to 22 TAC §851.30 and §851.152, concerning the licensure and regulation of Professional Geoscientists, without changes to the proposed text as published in the March 8, 2013, issue of the Texas Register (38 TexReg 1657).
The adopted amendments to §851.30 clarify the requirement that a Professional Geoscientist who performs or supervises the geoscientific work for a Geoscience Firm is required be an employee of the firm. The adopted amendments to §851.152 clarify the language that registration is required for business entities that offer or are engaged in the non-exempt public practice of geoscience in Texas.
Public comments were received from four individuals regarding §851.30. Two individuals commented in favor of the amendment; two individuals were opposed. One individual who opposed the amendment thought it was a bad idea because it appeared that the rule would be inviting firms to disregard the requirement of having a Professional Geoscientist in responsible charge until they are caught. The Board disagrees with this comment because the rule specifically requires that a firm that offers or performs non-exempt geoscience work for the public is required to have a Professional Geoscientist on staff. The other individual who opposed the change stated that the proposed change would allow firms to use inexperienced and unqualified geoscience individuals to prepare documents, maps and studies that would be presented to the public as competent work, and that it would remove the purpose of the license. The Board disagrees with this comment because the rules specify that a registered firm is required to have a Professional Geoscientist on staff to be in responsible charge of non-exempt geoscience work for the public.
Five public comments were received regarding §851.152. Two individuals commented in favor of the proposed amendment; three individuals were opposed. One individual thought the change was a bad idea because the commenter understood the amendment to lessen the restrictions on Geoscience Firm Registration. The Board disagrees with the comment because the amendment clarifies the rule and strengthens the regulation regarding Firm Compliance. The second individual was opposed to the removal of the 30-day requirement to comply with TBPG written notice regarding the requirement to be registered as a Geoscience Firm in Texas because the commenter felt it would allow the prohibited activity indefinitely. The Board disagrees with this comment because the amendment strengthens the regulation by allowing the Board to take appropriate action immediately against firms that are not in compliance. A third individual objected to the changes, and requested to retain the 30-day provision, and that the Board establish an alternative means of resolving firm registration administrative issues prior to invoking the full enforcement process. The Board disagrees with this individual's comments. The proposed amendment clarifies the rule. Regarding the removal of the 30-day period for firms to comply and become registered, that time frame was applicable only to firms that had not previously been registered. Additionally, the third individual pointed out that in some cases a firm might choose not to be registered as a Geoscience Firm, and hire registered Geoscience Firms to perform geoscience services that may be needed. The Geoscience Firm in that instance would take responsible charge for such work. The Board believes the rule as amended does not apply to a firm that chooses not to be registered and which does not provide non-exempt geoscience services for the public.
SUBCHAPTER B. P.G. LICENSING, FIRM REGISTRATION, AND GIT CERTIFICATION
The adopted amendments are authorized by the Texas Occupations Code §1002.151 which provides that the Board shall adopt and enforce rules consistent with the Texas Geoscience Practice Act (the Act); Texas Occupations Code §1002.154 which provides that Board shall enforce the Act; and Texas Occupation Code §1002.351 which provides that the Board may adopt rules relating to the public practice of geoscience by a firm or corporation.
The statute affected by the amendments is Texas Occupations Code, Chapter 1002.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 8, 2013.
TRD-201301836
Charles Horton
Executive Director
Texas Board of Professional Geoscientists
Effective date: June 1, 2013
Proposal publication date: March 8, 2013
For further information, please call: (512) 936-4405
The adopted amendments are authorized by the Texas Occupations Code §1002.151 which provides that the Board shall adopt and enforce rules consistent with the Texas Geoscience Practice Act (the Act); Texas Occupations Code §1002.154 which provides that Board shall enforce the Act; and Texas Occupation Code §1002.351 which provides that the Board may adopt rules relating to the public practice of geoscience by a firm or corporation.
The statute affected by this amendment is Texas Occupations Code, Chapter 1002.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 8, 2013.
TRD-201301837
Charles Horton
Executive Director
Texas Board of Professional Geoscientists
Effective date: June 1, 2013
Proposal publication date: March 8, 2013
For further information, please call: (512) 936-4405