TITLE 22. EXAMINING BOARDS

PART 11. TEXAS BOARD OF NURSING

CHAPTER 217. LICENSURE, PEER ASSISTANCE AND PRACTICE

22 TAC §217.9

Introduction

The Texas Board of Nursing (Board) proposes amendments to §217.9, concerning Inactive and Retired Status. The amendments are proposed under the authority of the Occupations Code §301.155 and related §301.261 and clarify that a nurse whose license is in "retired" status may not engage in the practice of nursing. While a volunteer retired nurse may practice nursing in compliance with the limitations of §217.9(e), a nurse whose license is in "retired" status may not. To the extent the current text of the subsection is unclear in this regard, the proposed amendments clarify this existing restriction.

Section by Section Overview

The current rule text provides that a nurse whose license is in "retired" status may not practice as a nurse for monetary or non-monetary benefits. The proposed amendments eliminate all reference to compensation because a retired nurse may not practice nursing at all. The current rule text may cause confusion and ambiguity regarding this existing restriction. As such, the proposed amendments clarify that a retired nurse many not practice nursing.

Fiscal Note. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amendments will be in effect, there will be no change in the revenue to state government as a result of the enforcement or administration of the proposal.

Public Benefit/Cost Note. Ms. Thomas has also determined that for each year of the first five years the proposed amendments are in effect, the anticipated public benefit will be the elimination of confusing language from the text of the rule and the adoption of rule text that is easily understandable.

There are no anticipated costs of compliance with the proposal, as the proposed amendments do not implement new requirements or restrictions; the amendments merely clarify the existing restriction in the current rule text. Thus, the Board does not anticipate that licensees will alter their compliance with the rule based on the proposed amendments. Further, because there are no anticipated costs associated with the adoption of this proposal, the Board is not required to comply with the requirements of Tex. Gov't Code. §2001.0045.

Economic Impact Statement and Regulatory Flexibility Analysis for Small and Micro Businesses. As required by the Government Code §2006.002(c) and (f), the Board has determined that the proposed amendments will not have an adverse economic effect on any individual, Board regulated entity, or other entity required to comply with the proposed amendments because there are no anticipated costs of compliance with the proposal. As such, the Board is not required to prepare a regulatory flexibility analysis.

Government Growth Impact Statement. The Board is required, pursuant to Tex. Gov't Code §2001.0221 and 34 Tex. Admin. Code §11.1, to prepare a government growth impact statement. The Board has determined for each year of the first five years the proposed amendments will be in effect: (i) the proposal does not create or eliminate a government program; (ii) implementation of the proposal does not require the creation of new employee positions or the elimination of existing employee positions, as the proposal clarifies the existing restriction in the rule and does not create new restrictions or requirements; (iii) implementation of the proposal does not require an increase or decrease in future legislative appropriations to the Board, as the proposal clarifies the existing restriction in the rule and does not create new restrictions or requirements; (iv) the proposal does not require an increase or decrease in fees paid to the Board; (v) the proposal does not create a new regulation; it merely clarifies an existing restriction; (vi) the proposal does not expand, limit, or repeal an existing regulation; (vii) the proposal does not increase or decrease the number of individuals subject to the rule 's applicability; and (viii) the proposal does not have an effect on the state's economy. Because the proposal clarifies an existing restriction and does not create new requirements, the Board does not anticipate an overall effect on licensees.

Takings Impact Assessment. The Board has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

Request for Public Comment. To be considered, written comments on the proposal or any request for a public hearing must be submitted no later than 5:00 p.m. on December 31, 2017, to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to dusty.johnston@bon.texas.gov, or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.

Statutory Authority. The amendments are proposed under the authority of the Occupations Code §301.151 and related §301.261.

Section 301.151 addresses the Board's rulemaking authority. Section 301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (i) perform its duties and conduct proceedings before the Board; (ii) regulate the practice of professional nursing and vocational nursing; (iii) establish standards of professional conduct for license holders under Chapter 301; and (iv) determine whether an act constitutes the practice of professional nursing or vocational nursing.

Section 301.261(a) provides that the Board may place on inactive status the license of a person under Chapter 301 who is not actively engaged in the practice of professional nursing or vocational nursing if the person submits a written request to the Board in the form and manner determined by the Board. The inactive status begins on the expiration date of the person's license.

Section 301.261(b) provides that the Board shall maintain a list of each person whose license is on inactive status.

Section 301.261(c) provides that a person whose license is on inactive status may not perform any professional nursing or vocational nursing service or work.

Section 301.261(d) provides that the Board shall remove a person's license from inactive status if the person requests that the Board remove the person's license from inactive status; pays each appropriate fee; and meets the requirements determined by the Board.

Section 301.261(e) provides that the Board, by rule, shall permit a person whose license is on inactive status and who was in good standing with the Board on the date the license became inactive to use, as applicable, the title "Registered Nurse Retired," "R.N. Retired," "Licensed Vocational Nurse Retired," "Vocational Nurse Retired," "L.V.N. Retired," or "V.N. Retired" or another appropriate title approved by the Board.

Cross Reference To Statute. The following statutes are affected by this proposal: Rule Statute §217.9 §301.151 and §301.261.

§217.9.Inactive and Retired Status.

(a) - (c) (No change.)

(d) A nurse whose license is in "retired" status may not practice as a nurse [for compensation (monetary or non-monetary benefits)].

(e) - (i) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 17, 2017.

TRD-201704692

Jena Abel

Deputy General Counsel

Texas Board of Nursing

Earliest possible date of adoption: December 31, 2017

For further information, please call: (512) 305-6822


PART 23. TEXAS REAL ESTATE COMMISSION

CHAPTER 535. GENERAL PROVISIONS

SUBCHAPTER E. REQUIREMENTS FOR LICENSURE

22 TAC §535.52

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §535.52, Moral Character Requirements for Individual Applicant, in Chapter 535, General Provisions.

The proposed amendments to §535.52, clarify that violating the terms of an administrative order by the Commission or any other governmental body tends to indicate that the applicant does not possess the honesty, trustworthiness or integrity to hold a real estate license.

Kerri Lewis, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no significant anticipated impact on small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the sections. There is no anticipated significant economic cost to persons who are required to comply with the proposed amendments.

Ms. Lewis also has determined that for each year of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcing the sections will be greater clarity of licensure requirements for applicants.

For each year of the first five years the proposed amendments are in effect the amendments will not:

• create or eliminate a government program;

• require the creation of new employee positions or the elimination of existing employee positions;

• require an increase or decrease in future legislative appropriations to the agency;

• require an increase or decrease in fees paid to the agency;

• create a new regulation;

• expand, limit or repeal an existing regulation;

• increase or decrease the number of individuals subject to the rule's applicability; or

• positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Kerri Lewis, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188 or via email to general.counsel@trec.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed 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 license holders to fulfill the purposes of Chapters 1101 and 1102 and ensure compliance with Chapters 1101 and 1102.

The statutes affected by this proposal are Texas Occupations Code, Chapter 1101 and 1102. No other statute, code or article is affected by the proposed amendments.

§535.52.Moral Character Requirements for Individual Applicant.

(a) (No change.)

(b) Conduct that tends to demonstrate that an applicant does not possess the requisite honesty, trustworthiness or integrity includes, but is not limited to:

(1) a plea of guilty or nolo contendere to or a conviction of any offense listed in §541.1 of this title (relating to Criminal Offense Guidelines);

(2) failing to successfully or satisfactorily complete any term or condition of parole, supervised release, probation, or community supervision;

(3) providing false or misleading information to the Commission;

(4) disciplinary action taken against, or the surrender of, any [other] professional or occupational license or registration, in this or any other state;

(5) engaging in activities for which a license or registration is required without having the legal authorization to do so, in this or any other state;

(6) violating any provision of the Act;

(7) violating any provision of the rules of the Commission;

(8) failing to pay a judgment (including any court-ordered costs, fees, penalties, or damages), that is not otherwise discharged in bankruptcy;

(9) failing to provide information or documentation related to moral character requirements not later than the 60th day after the date the Commission sends a written request to an applicant; and

(10) failing to comply with any term of an administrative order issued by this state, any other state, or the federal government.

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 November 16, 2017.

TRD-201704669

Kerri Lewis

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: December 31, 2017

For further information, please call: (512) 936-3092


SUBCHAPTER F. REQUIREMENTS FOR EDUCATION PROVIDERS, COURSES AND INSTRUCTORS FOR QUALIFYING EDUCATION

22 TAC §535.65

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §535.65, Responsibilities and Operations of Providers of Qualifying Courses, in Chapter 535, General Provisions.

The proposed amendments to §535.65 implement changes made to Chapter 53 of the Texas Occupations Code in HB 1508, adopted by the 85th Legislature effective September 1, 2017. These changes require education providers to notify potential students before they enroll in an occupational licensing education program that a criminal history may make them ineligible for the license they seek and that they have a right to request a criminal history evaluation from the licensing authority. The statutory changes also provide authority for licensing agencies to order reimbursements be paid to the student if the provider fails to give the required notices. In addition, subsection (h)(1) is amended to clarify that all final examinations are to be closed book examinations. This change was recommended by the Commission's Education Standards Advisory Committee.

Kerri Lewis, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no significant anticipated impact on small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the sections. There is no anticipated significant economic cost to persons who are required to comply with the proposed amendments.

Ms. Lewis also has determined that for each year of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcing the sections will be greater clarity about the process for education providers and to better prepared students for licensing examinations.

For each year of the first five years the proposed amendments are in effect the amendments will not:

• create or eliminate a government program;

• require the creation of new employee positions or the elimination of existing employee positions;

• require an increase or decrease in future legislative appropriations to the agency;

• require an increase or decrease in fees paid to the agency;

• create a new regulation;

• expand, limit or repeal an existing regulation;

• increase or decrease the number of individuals subject to the rule's applicability;

• positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Kerri Lewis, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188 or via email to general.counsel@trec.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed 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 license holders to fulfill the purposes of Chapters 1101 and 1102 and ensure compliance with Chapters 1101 and 1102.

The statutes affected by this proposal are Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the proposed amendments.

§535.65.Responsibilities and Operations of Providers of Qualifying Courses.

(a) Responsibility of Providers.

(1) A provider is responsible for:

(A) the administration of each course, including, but not limited to, compliance with any prescribed period of time for any required course topics required by the Act, Chapter 1102, and Commission rules;

(B) maintaining student attendance records and pre-enrollment agreements;

(C) verifying instructor qualification, performance and attendance;

(D) proper examination administration;

(E) validation of student identity acceptable to the Commission;

(F) maintaining student course completion records;

(G) ensuring all advertising complies with subsection (c);

(H) ensuring that instructors or other persons do not recruit or solicit prospective sales agents, brokers or inspectors during course presentation; and

(I) ensuring staff is reasonably available for public inquiry and assistance.

(2) A provider may not promote the sale of goods or services during the presentation of a course.

(3) A provider may remove a student and not award credit if a student does not participate in class, or disrupts the orderly conduct of a class, after being warned by the provider or the instructor.

(4) If a provider approved by the Commission does not maintain a fixed office in Texas for the duration of the provider's approval to offer courses, the provider shall designate a resident of this state as attorney-in-fact to accept service of process and act as custodian of any records in Texas that the provider is required to maintain by this section. A power-of-attorney designating the resident must be filed with the Commission in a form acceptable to the Commission.

(b) - (c) (No change.)

(d) Pre-enrollment agreements for approved providers.

(1) Prior to a student enrolling in a course, a provider approved by the Commission shall provide the student with a pre-enrollment agreement that includes all of the following information:

(A) the tuition for the course;

(B) an itemized list of any fees charged by the provider for supplies, materials, or books needed in course work;

(C) the provider's policy regarding the refund of tuition and other fees, including a statement addressing refund policy when a student is dismissed or withdraws voluntarily;

(D) the attendance requirements;

(E) the acceptable makeup procedures, including any applicable time limits and any fees that may be charged for makeup sessions; [and]

(F) the procedure and fees for taking any permitted makeup final examination or any permitted re-examination, including any applicable time limits; and[.]

(G) the notices regarding potential ineligibility for a license based on criminal history required by Section 53.152, Texas Occupations Code.

(2) A pre-enrollment agreement must be signed by a representative of the provider and the student.

(e) Refund of fees by approved provider.

(1) A provider shall establish written policies governing refunds and contingency plans in the event of course cancellation.

(2) If a provider approved by the Commission cancels a course, the provider shall:

(A) fully refund all fees collected from students within a reasonable time; or

(B) at the student's option, credit the student for another course.

(3) The provider shall inform the Commission when a student requests a refund because of a withdrawal due to the student's dissatisfaction with the quality of the course.

(4) If a provider fails to give the notice required by subsection (d)(1)(G), and an individual's application for a license is denied by the Commission because the individual has been convicted of a criminal offense, the provider shall reimburse the individual the amounts required by Section 53.153, Texas Occupations Code.

(f) - (g) (No change.)

(h) Course examinations.

(1) The final examination given at the end of each course must be given in a form and with questions that were submitted to the Commission with the course approval form. All final examinations must be closed booked.

(2) Final examination questions must be kept confidential and be significantly different from any quizzes and exercises used in the course.

(3) A provider shall not permit a student to view or take a final examination before the completion of regular course work and any makeup sessions required by this section.

(4) A provider must rotate all versions of the examination required by §535.62(b)(7) throughout the approval period for a course in a manner acceptable to the Commission and examinations must:

(A) require an unweighted passing score of 70%; and

(B) be proctored by a member of the provider faculty or staff, or third party proctor acceptable to the Commission, who:

(i) is present at the test site or able to monitor the student through the use of technology acceptable to the Commission; and

(ii) has positively identified that the student taking the examination is the student registered for and who took the course.

(5) The following are acceptable third party proctors:

(A) employees at official testing or learning/tutoring centers;

(B) librarians at a school, university, or public library;

(C) college or university administrators, faculty, or academic advisors;

(D) clergy who are affiliated with a specific temple, synagogue, mosque, or church; and

(E) educational officers of a military installation or correctional facility.

(6) A provider may not give credit to a student who fails a final examination and a subsequent final examination as provided for in subsection (i) of this section.

(i) - (m) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 16, 2017.

TRD-201704666

Kerri Lewis

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: December 31, 2017

For further information, please call: (512) 936-3092


CHAPTER 537. PROFESSIONAL AGREEMENTS AND STANDARD CONTRACTS

22 TAC §§537.20, 537.28, 537.30 - 537.32, 537.37, 537.55, 537.56

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §§537.20, Standard Contract Form TREC No. 9-12; §537.28, Standard Contract Form TREC No. 20-13; §537.30, Standard Contract Form TREC No. 23-14; §537.31, Standard Contract Form TREC No. 24-14; §537.32, Standard Contract Form TREC No. 25-11; §537.37, Standard Contract Form TREC No. 30-12; new §537.55, Standard Contract Form TREC No. 48-0 and new §537.56, Standard Contract Form TREC No. 49-0, in Chapter 537, Professional Agreements and Standard Contracts.

Texas real estate license holders are generally required to use forms promulgated by TREC when negotiating contacts for the sale of real property. These forms are drafted and recommended for adoption by the Texas Real Estate Broker-Lawyer Committee, an advisory body consisting of six attorneys appointed by the President of the State Bar of Texas, six brokers appointed by TREC, and one public member appointed by the governor.

The Broker Lawyer Committee recommended revisions to the contract forms adopted by reference under the proposed amendments and new rules to Chapter 537 to address issues that have arisen since the last contract revisions.

The changes listed below apply to all contract forms unless specified otherwise. Paragraph numbers referenced are from the One to Four Family Residential Contract (Resale).

Paragraph 2 is amended to clarify that any reservations of mineral rights must be done in a separate addendum.

Paragraph 5 is amended to require Earnest Money to be delivered within 3 days of the Effective Date. If the 3rd day falls on a Saturday, Sunday or legal holiday, the earnest money is due on the next day that is not a Saturday, Sunday or legal holiday. Seller may terminate the contract if buyer fails to timely deliver the Earnest Money and time is made of the essence for this paragraph.

"Effective Date" is made a defined term throughout the contracts but is still tied to the final date of acceptance provided on the signature page.

Paragraph 6A(9) is amended to include an exception for minerals as approved by the Texas Department of Insurance.

Paragraph 6B the phrase "due to factors beyond Seller's control" is removed from the sentence allowing Buyer to terminate the contract if the Commitment and Exception documents are not timely received.

Paragraph 6D is amended to define the time by which seller is to cure objections as the "Cure Period", provide a specific time frame by which the buyer must notify the seller that the buyer will terminate or waive the objections if the objections are not cured within the Cured Period, and address additional time periods for the buyer to object and the seller to cure if a revised commitment, revised survey, or updated exception documents are provided.

Paragraph 20 is amended to clarify what is meant by "applicable law" and an "affidavit" when seller is a "foreign person."

The space for fax numbers were removed from the Broker Information page and a space for phone numbers for the brokers were added.

Separate receipt boxes were added to the forms for Earnest Money, the Contract and Additional Earnest Money.

Paragraph 2B(2) and 2C (Condominium Contract Only) is amended to clarify that the seller bears the expense to deliver the condominium documents and the resale certificate to buyer.

Paragraph 2F. Reservations (Farm and Ranch Contract Only) is amended to strike the parenthetical stating that reservations may be included in special provisions (suggesting that reservations are to be addressed only in a properly drafted addendum).

A new addendum is proposed to address who pays for and is responsible for damages from a hydrostatic test, if the parties agree to have one performed.

A new addendum is proposed to address the situation where the parties create a contingency to the contract based on the appraisal performed by the lender and termination rights or waiver associated with that contingency.

Kerri Lewis, General Counsel, has determined that for the first five-year period the proposed amendments and new rules are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no anticipated impact on small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the sections. There is no anticipated significant economic cost to persons who are required to comply with the proposed amendments and new rules.

Ms. Lewis also has determined that for each year of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcing the sections will be greater clarity in the standard contract forms and greater consistency and consumer protection for the newly proposed addenda.

For each year of the first five years the proposed amendments and new rules are in effect, the amendments and new rules will not:

• create or eliminate a government program;

• require the creation of new employee positions or the elimination of existing employee positions;

• require an increase or decrease in future legislative appropriations to the agency;

• require an increase or decrease in fees paid to the agency;

• create a new regulation;

• expand, limit or repeal an existing regulation;

• increase or decrease the number of individuals subject to the rules' applicability;

• positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Kerri Lewis, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188 or via email to general.counsel@trec.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments and new rules are proposed 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 license holders to fulfill the purposes of Chapters 1101 and 1102 and ensure compliance with Chapters 1101 and 1102.

The statutes affected by these amendments and new rules are Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the amendments and new rules.

§537.20.Standard Contract Form TREC No. 9-13 [9-12].

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 9-13 [9-12] approved by the Commission in 2017 [2015] for use in the sale of unimproved property where intended use is for one to four family residences.

§537.28.Standard Contract Form TREC No. 20-14 [20-13].

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 20-14 [20-13] approved by the Commission in 2017 [2015] for use in the resale of residential real estate.

§537.30.Standard Contract Form TREC No. 23-15 [23-14].

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 23-15 [23-14] approved by the Commission in 2017 [2015] for use in the sale of a new home where construction is incomplete.

§537.31.Standard Contract Form TREC No. 24-15 [24-14].

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 24-15 [24-14] approved by the Commission in 2017 [2015] for use in the sale of a new home where construction is completed.

§537.32.Standard Contract Form TREC No. 25-12 [25-11].

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 25-12 [25-11] approved by the Commission in 2017 [2015] for use in the sale of a farm or ranch.

§537.37.Standard Contract Form TREC No. 30-13 [30-12].

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 30-13 [30-12] approved by the Commission in 2017 [2015] for use in the resale of a residential condominium unit.

§537.55.Standard Contract Form TREC No. 48-0.

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 48-0 approved by the Commission in 2017 for use as an addendum to be added to promulgated forms if the parties agree to hydrostatic testing.

§537.56.Standard Contract Form TREC No. 49-0.

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 49-0 approved by the Commission in 2017 for use as an addendum to be added to promulgated forms concerning the right to terminate due to lender's appraisal.

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 November 16, 2017.

TRD-201704667

Kerri Lewis

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: December 31, 2017

For further information, please call: (512) 936-3092


CHAPTER 541. RULES RELATING TO THE PROVISIONS OF TEXAS OCCUPATIONS CODE, CHAPTER 53

22 TAC §541.1

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §541.1, Criminal Offense Guidelines, in Chapter 541, Rules Relating to the Provisions of Texas Occupations Code, Chapter 53.

The proposed amendments to §541.1, are recommended by the Enforcement Committee of the Commission after review of the list of crimes that directly related to an applicant's fitness to practice as a real estate license holder, inspector or easement and right-of-way agent.

Kerri Lewis, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no significant anticipated impact on small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the sections. There is no anticipated significant economic cost to persons who are required to comply with the proposed amendments.

Ms. Lewis also has determined that for each year of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcing the sections will be greater clarity of licensure requirements for applicants.

For each year of the first five years the proposed amendments are in effect the amendments will not:

• create or eliminate a government program;

• require the creation of new employee positions or the elimination of existing employee positions;

• require an increase or decrease in future legislative appropriations to the agency;

• require an increase or decrease in fees paid to the agency;

• create a new regulation;

• expand, limit or repeal an existing regulation;

• increase or decrease the number of individuals subject to the rule's applicability;

• positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Kerri Lewis, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188 or via email to general.counsel@trec.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed 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 license holders to fulfill the purposes of Chapters 1101 and 1102 and ensure compliance with Chapters 1101 and 1102.

The statutes affected by this proposal are Texas Occupations Code, Chapter 1101 and 1102. No other statute, code or article is affected by the proposed amendments.

§541.1.Criminal Offense Guidelines.

(a) For the purposes of Texas Occupations Code, Chapter 53, §§1101.354, 1102.107, 1102.108, 1102.109, and §535.400(f) of this title, the Texas Real Estate Commission considers that a deferred adjudication deemed a conviction under §53.021 or a conviction of the following criminal offenses directly relate to the duties and responsibilities of a real estate broker, real estate salesperson, easement or right-of-way agent, professional inspector, real estate inspector or apprentice inspector for the reason that the commission of the offenses tends to demonstrate the person's inability to represent the interest of another with honesty, trustworthiness, and integrity:

(1) offenses involving fraud or misrepresentation;

(2) offenses involving forgery, falsification of records, or perjury;

(3) offenses involving the offering, paying, or taking of bribes, kickbacks, or other illegal compensation;

(4) offenses against real or personal property belonging to another;

(5) offenses against the person;

(6) offenses against public administration;

(7) offenses involving the sale or other disposition of real or personal property belonging to another without authorization of law;

(8) offenses involving moral turpitude;

(9) offenses in violation of Chapter 21, Texas Penal Code (sexual offenses);

(10) offenses for which the person has been required to register as a sex offender under Chapter 62, Texas Code of Criminal Procedure;

(11) felonies involving the manufacture, delivery, or intent to deliver controlled substances;

(12) offenses of attempting or conspiring to commit any of the foregoing offenses;

(13) offenses involving aiding and abetting the commission of an offense listed in this section;

(14) repeated violations of one criminal statute or multiple violations of different [any] criminal statutes [statute evidencing a disregard for or inability to comply with the law];

(15) felonies involving driving while intoxicated (DWI) or driving under the influence (DUI); and

[(16) any other offense that the Commission determines is directly related to an occupation regulated by the Commission using the factors described in subsection (b) of this section.]

(b) In determining whether a criminal offense not listed in subsection (a) of this section [or any other criminal offense] is directly related to an occupation regulated by the Commission, the Commission shall consider [and make appropriate findings of fact in a contested case upon the following factors]:

(1) the nature and seriousness of the crime;

(2) the relationship of the crime to the purposes for requiring a license to engage in the occupation;

(3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and

(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.

(c) - (d) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 16, 2017.

TRD-201704668

Kerri Lewis

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: December 31, 2017

For further information, please call: (512) 936-3092