TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY

CHAPTER 35. PRIVATE SECURITY

SUBCHAPTER B. REGISTRATION AND LICENSING

37 TAC §35.26

The Texas Department of Public Safety (the department) proposes amendments to §35.26, concerning Reclassification, Assignment, and Termination. Amendments to §35.26 are necessary to allow assignments or terminations of a company license with the consent of a majority of the registered owners or by written consent of the qualified manager.

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

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

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be greater clarity in the administrative rules governing the private security industry.

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

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

Pursuant to Texas Government Code, §2001.0221, the department has prepared a Government Growth Impact Statement and determined for each year of the first five-year period the rule is in effect, the proposed rule will not have any impact as described by Texas Government Code, §2001.022.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, P.O. Box 4087, MSC-0240, Austin, Texas 78773-0246, or by email at https://www.dps.texas.gov/rsd/contact/default.aspx. Select "Private Security". Comments must be received no later than thirty (30) days from the date of publication of this proposal.

These amendments are proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Occupations Code, §1702.061(b), which authorizes the department to adopt rules to administer Texas Occupations Code, Chapter 1702.

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

§35.26.Reclassification, [and ] Assignment, and Termination.

(a) When a Class A or B license is reclassified as a Class C license, a fee in the amount of the difference in the cost of the licenses shall be paid. There shall be no refund when a Class C license is reclassified as a Class A or Class B license.

(b) The department may approve the assignment of a company license to the spouse or heir(s) of a deceased owner provided:

(1) A copy of the owner's death certificate is filed with the department;

(2) A copy of the Will, Order Admitting Will to Probate, Letters of Testament, Affidavit of Heirship with two affiants' signatures, or Order of Heirship is filed with the department; and

(3) In the case of the death of a qualified manager, that a replacement manager is qualified within ninety (90) days.

(c) Other assignments will be permitted only under one of the conditions detailed in this subsection: [where the majority owners of the original licensee maintain majority ownership of the proposed assignee.]

(1) the ownership in the assignor and assignee will remain the same;

(2) the registered owners holding at least 25% ownership in the original license, and collectively holding a majority ownership interest, consent to the assignment; or

(3) if there is an insufficient number of registered owners holding at least 25% ownership in the original license to potentially hold a majority in ownership interest in the license, the license may be assigned by written consent of the qualified manager or an individual designated and verified by affidavit by the qualified manager as authorized to assign the license.

(d) The assignor must provide the department written documentation establishing the intended date of assignment[, ] and notarized statements establishing the consent of a majority of the owners of the current license, or if applicable, the qualified manager, from the appropriate individuals. The assignee must ensure any new owners required to register are currently [have been] approved by the department. The assignee may not perform regulated services prior to the proposed date of assignment or the date of the department's approval of all required registration applications for new owners, whichever is later. The assignor must cease performance of all regulated services on the earlier of either the proposed date of assignment or the date of surrender or termination of any related owner registrations.

(e) [(d)] An additional assignment fee will be assessed as provided by this chapter upon assignment of a license under subsection (b) or (c) of this section.

(f) A license may only be terminated by consent of the registered owners holding at least 25% in the licensed company and collectively holding a majority ownership interest, unless the ownership structure of the company has an insufficient number of such owners to potentially represent a majority, in which case the license may be terminated by written consent of the qualified manager or an individual designated by the qualified manager verified by affidavit by the manager as authorized to terminate the license. The license holder must provide the department written documentation reflecting the intended date of termination and the consent of the appropriate individuals in the form of notarized statements.

(g) An assignment or termination effected by written consent of the qualified manager may be overturned within thirty (30) calendar days of the department's receipt of the qualified manager's consent documentation by majority vote of the entity's board of directors or the equivalent level decision making body of the licensee. Documentation of the vote must be received by the department within ten (10) business days of the board's decision.

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 December 20, 2017.

TRD-201705273

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: February 4, 2018

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


SUBCHAPTER H. LETTER OF AUTHORITY

37 TAC §35.101, §35.102

The Texas Department of Public Safety (the department) proposes amendments to §35.101 and §35.102, concerning Letter of Authority. These amendments are necessary to clarify the authority of entities holding Private Business or Governmental Letters of Authority to employ personal protection officers, and to clarify the authority of entities holding Private Business Letters of Authority to employ noncommissioned security officers.

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

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

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be greater clarity in the administrative rule requirements applicable to private and governmental Letters of Authority.

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

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

Pursuant to Texas Government Code, §2001.0221, the department has prepared a Government Growth Impact Statement and determined for each year of the first five-year period the rule is in effect, the proposed rule will not have any impact as described by Texas Government Code, §2001.022.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, P.O. Box 4087, MSC-0240, Austin, Texas 78773-0246, or by email at https://www.dps.texas.gov/rsd/contact/default.aspx. Select "Private Security". Comments must be received no later than thirty (30) days from the date of publication of this proposal.

These amendments are proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Occupations Code, §1702.061(b), which authorizes the department to adopt rules to administer Texas Occupations Code, Chapter 1702.

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

§35.101.Private Business Letter of Authority.

(a) The security department of a private business, as defined in the Act, must obtain a letter of authority [in order] to employ a commissioned security officer or personal protection officer.

(b) To employ [A security department of a private business that employs] in a noncommissioned [non commissioned] capacity an individual meeting the conditions of §1702.323(d) of the Act, a security department of a private business must obtain a letter of authority and register the individual with the department [guard company license].

(c) A security department of a private business shall not provide guard company services to a third party.

(d) The holder of a private business letter of authority must qualify a manager who meets the requirements of the Act as they pertain to the manager of a security services contractor and maintain on file with the department the name of the individual responsible to ensure the commissioned security officer's compliance and ensure records are maintained in accordance with applicable laws and rules.

(e) A private business letter of authority is valid for one year and may be renewed by submitting the department approved renewal application and the required renewal fee no earlier than ninety (90) days prior to expiration.

§35.102.Governmental Letter of Authority.

(a) A political subdivision that employs a commissioned private security officer or personal protection officer must obtain a governmental letter of authority.

(b) The governmental letter of authority is valid for one (1) year and may be renewed by submitting the department approved renewal application and required renewal fee no earlier than ninety (90) days prior to expiration.

(c) The holder of the governmental letter of authority must designate and maintain on file with the department the name of the individual responsible for ensuring the commissioned security officer's compliance with the Act and this chapter and for ensuring records are maintained in accordance with this chapter.

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

Filed with the Office of the Secretary of State on December 20, 2017.

TRD-201705274

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: February 4, 2018

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


SUBCHAPTER L. TRAINING

37 TAC §35.147

The Texas Department of Public Safety (the department) proposes amendments to §35.147, concerning Certificates of Completion, Training Records, and Notifications. Amendments to this section are proposed in response to 85th Legislative Session, HB 1508 which amended Occupations Code, Chapter 53 regarding notice requirements. The proposal clarifies the legislation and provides a simplified mechanism by which licensees may comply with the legislation.

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

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

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be an increase in the information relating to license eligibility made available to prospective private security licensees, consistent with new legislation.

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

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

Pursuant to Texas Government Code, §2001.0221, the department has prepared a Government Growth Impact Statement and determined for each year of the first five-year period the rule is in effect, the proposed rule will expand the notice requirements for certain private security training providers. The change in rule is proposed in response to amendments to Occupations Code Chapter 53 made during the 85th Legislative Session by HB 1508.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, P.O. Box 4087, MSC-0240, Austin, Texas 78773-0246, or by email at https://www.dps.texas.gov/rsd/contact/default.aspx. Select "Private Security". Comments must be received no later than thirty (30) days from the date of publication of this proposal.

These amendments are proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Occupations Code, §1702.061(b), which authorizes the department to adopt rules to administer Texas Occupations Code, Chapter 1702.

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

§35.147.Certificates of Completion, [and] Training Records, and Notifications.

(a) A department approved training school shall:

(1) Issue an original certificate of completion to each qualifying student within seven (7) days after the student qualifies;

(2) Maintain adequate records to show attendance, progress and grades of students and maintain on file a copy of each certificate issued to students at the department approved training school;

(3) Make all required records available to investigators employed by the department for inspection during reasonable business hours; and

(4) Retain all training records for twenty-four (24) months from the date of completion of training.

(5) Notify each applicant or enrollee of the potential ineligibility of an individual who has been convicted of an offense, the current guidelines provided in §35.4 of this title (relating to Guidelines for Disqualifying Criminal Offenses), and the right to request a criminal history evaluation letter under Occupations Code, §53.102. As provided in Occupations Code, §53.153, failure to comply with this subsection may result in an order to refund tuition paid and reimburse the individual's application and training fees. Failure to comply with an order to refund tuition or reimburse fees may result in suspension of the school license until payment is made, pursuant to §1702.361 of the Act. The figure in this paragraph provides the recommended text of the notice. Direct communication of this text to the prospective applicant, whether by email or other correspondence, or on the application for admission to a course, is sufficient to establish compliance with this section.

Figure: 37 TAC §35.147(a)(5) (.pdf)

(b) The certificate of completion shall reflect the particular course or courses completed by a student during the training period.

(1) Certificates of completion for Level II shall contain the:

(A) Name and approval number of the school;

(B) Date of completion;

(C) Name, signature, and approval number of training instructor; and

(D) Full name and last six (6) digits of social security number of student.

(2) Certificates of completion for Level III and IV shall contain the:

(A) Name and approval number of the school;

(B) Date of firearm training completion (Level III only);

(C) Name, signature, and approval number of classroom and/or firearm training instructor;

(D) Full name and last six (6) digits of the social security number of student; and

(E) The specific date of firearm qualification along with the name and approval number of the firearms instructor on those certificates designating completion of Level III.

(3) Certificate of completion for firearms qualification (firearm proficiency) shall contain the:

(A) Name and approval number of the school;

(B) Name, signature, and approval number of firearms training instructor;

(C) Full name and last six (6) digits of the social security number of student;

(D) Firearms completion date;

(E) Note the category of firearm as defined in this chapter;

(F) Note the caliber of firearm; and

(G) Be on a certificate form designed or approved by the department.

(4) Certificates of completion for alarm systems installation or sales training shall contain:

(A) The name and approval number of the school;

(B) The name, signature and approval number of training instructor:

(C) The full name and last six (6) digits of the social security number of student;

(D) The date of final completion of the entire course; and

(E) The words "Has successfully completed the alarm installers or alarm systems salespersons alarm training school approved by the Texas Department of Public Safety."

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 December 20, 2017.

TRD-201705275

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: February 4, 2018

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


SUBCHAPTER M. CONTINUING EDUCATION

37 TAC §35.161

The Texas Department of Public Safety (the department) proposes amendments to §35.161, concerning Continuing Education Requirements.

The proposed amendment to subsection (a) of §35.161 is intended to clarify that it is the registrant's responsibility to ensure compliance with the continuing education requirements prior to submission of the renewal application, and to address an inconsistency between the information required to be submitted at renewal and the information required to be provided to the student by the school in §35.162.

The proposed amendments to subsection (b) are intended to address the situation in which registered owners also perform regulated services in their individual capacities. The current rule does not expressly address the continuing education requirements for such individuals, referring only to those who are registered as a specific type of private security registrant (other than owners), or to nonparticipating owners (providing an exemption). Current rule does not specifically address participating owners. The proposed language clarifies this by addressing owners who are involved in the business ("participating owners"), and distinguishing those participating owners who also independently perform regulated services from those who do not.

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

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

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be greater clarity in the continuing education administrative rules applicable to the private security industry.

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

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

Pursuant to Texas Government Code, §2001.0221, the department has prepared a Government Growth Impact Statement and determined for each year of the first five-year period the rule is in effect, the proposed rule will not have any impact as described by Texas Government Code, §2001.022.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, P.O. Box 4087, MSC-0240, Austin, Texas 78773-0246, or by email at https://www.dps.texas.gov/rsd/contact/default.aspx. Select "Private Security". Comments must be received no later than thirty (30) days from the date of publication of this proposal.

These amendments are proposed pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work, and Texas Occupations Code, §1702.061(b), which authorizes the department to adopt rules to administer Texas Occupations Code, Chapter 1702.

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

§35.161.Continuing Education Requirements.

(a) An application to renew a [A] license, registration, endorsement, or commission may not be submitted [renewed] until the required minimum hours of department approved continuing education credits have been earned in accordance with the Act and this chapter. Proof of the required continuing education must be maintained by the employer and contained in the personnel file of the registrant's employing company. All registrants shall indicate they have completed the required minimum hours of department approved continuing education credits on their application for renewal. A renewal application shall also include the name of the school, school number, [seminar number, seminar] date of attendance, number of hours attended, and courses of instruction attended [and credits earned].

(b) Participating owners, partners, and shareholders, who perform services regulated under the Act on behalf of the licensed company, shall comply with the continuing education requirements of this section applicable to the regulated service provided. Participating owners, partners, and shareholders, who do not otherwise perform services regulated under the Act, shall complete a total of eight (8) hours of continuing education, including seven (7) hours in the subject matter that relates to the type of regulated service provided by the licensee, and one (1) hour of ethics. For purposes of this section, participating refers to involvement in decisions governing the operation of the regulated company. Nonparticipating owners, partners, or shareholders;[,] noncommissioned security officers, and all individuals not required to obtain a registration, endorsement, commission or license under the Act [administrative support personnel] are specifically exempted from the continuing education requirements.

(c) All registrants not specifically addressed in this section shall complete a total of eight (8) hours of continuing education, seven (7) hours of which must be in subject matter that relates to the type of registration held, and one (1) hour of which must cover ethics. Following the initial registration period, qualified managers of Class B licensed companies may take a one (1) hour course devoted to changes in laws and rules applicable to the security industry, as a substitute for the above one (1) hour ethics requirement.

(d) Private investigators and managers of Class A and Class C licenses with more than fifteen (15) years of continued registration as a private investigator or manager of a Class A or Class C license shall complete a total of twelve (12) hours of continuing education, eight (8) hours of which must be in subject matter that relates to the type of registration held, two (2) hours of which must cover ethics, and two (2) hours of which must involve the review of the Act and the rules of this chapter.

(e) Private Investigators and managers of Class A and Class C licenses with less than fifteen (15) years of continued registration as a private investigator or manager of a Class A or Class C license shall complete a total of eighteen (18) hours of continuing education, fourteen (14) of which must be in subject matter that relates to the type of registration held, two (2) hours of which must cover ethics, and two (2) hours of which must involve the review of the Act and the rules of this chapter.

(f) Any person registered as a private investigator who fails to complete the required continuing education during the twenty-four (24) months of an initial registration is not eligible to make a new or renewal application until such time as the training requirement for the previous registration period has been satisfied.

(g) Commissioned security officers and personal protection officers shall complete six (6) hours of continuing education. Continuing education for commissioned security officers and personal protection officers must be taught by schools and instructors approved by the department to instruct commissioned security officers as defined in the Act. Commissioned security officers shall submit a firearms proficiency certificate along with the renewal application.

(h) During the first twelve (12) months of initial registration, each person employed as an alarm system installer or alarm systems salesperson must complete Alarm Level I training, consisting of sixteen (16) hours of classroom instruction or equivalent online course as approved by the department, with two (2) hours covering the National Electrical Code (NEC) as it applies to low voltage. Any person employed as an alarm systems installer or alarm systems salesperson must earned eight (8) hours of continuing education credits in an alarm related field, with one (1) hour covering the National Electrical Code (NEC) as it applies to low voltage, during each subsequent twenty-four (24) month period. This requirement must be satisfied prior to the expiration date of registration in order to renew the registration.

(i) For the protection of the installer and the general public, the work of an alarm system installer who has not completed the required sixteen (16) hours of instruction must be overseen by an installer who has completed the required sixteen (16) hours of instruction. The oversight required under this section need not involve direct physical supervision, but the overseeing installer is responsible for ensuring the installation complies with all applicable requirements and regulations.

(j) Any person registered as an alarm systems installer or salesperson who fails to complete sixteen (16) hours of training during the twenty-four (24) months of initial licensure, or who fails to complete eight (8) hours of continuing education during any subsequent licensing period is not eligible to make a new or renewal application until such time as all training requirements for the previous license period have been satisfied.

(k) Alarm monitors shall complete four (4) hours of continuing education in subject matter that relates to the duties and responsibilities of an alarm monitor.

(l) All persons registered or licensed as locksmiths must complete sixteen (16) hours of continuing education every two (2) years.

(m) Attendees of continuing education courses shall maintain certificates of completion furnished by the school director in their files for a period of two (2) years. Attendees shall furnish the department with copies of all certificates of completion upon request.

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 December 20, 2017.

TRD-201705277

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: February 4, 2018

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