TITLE 13. CULTURAL RESOURCES

PART 2. TEXAS HISTORICAL COMMISSION

CHAPTER 26. PRACTICE AND PROCEDURE

SUBCHAPTER B. IDENTIFICATION AND DESIGNATION OF LANDMARKS

13 TAC §26.8

The Texas Historical Commission (Commission) proposes an amendment to §26.8, concerning the application process for designations for publicly-owned landmarks under the Texas Antiquities Code. This amendment clarifies the processes for casting of medallions for publicly and privately-owned landmarks.

The Antiquities Code allows third-party nominators to submit an application for nomination for publicly-owned landmarks. In addition to the designation, nominators may also request a medallion, or marker, for the site. The proposed amendment to §26.8 clarifies the requirements for the casting of a medallion for publicly-owned landmarks.

Mark Wolfe, Executive Director, has determined that for the first five-year period the amended rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering these rules.

Mr. Wolfe has also determined that for the first five-year period the amended rule is in effect, the public benefit will be the preservation of and education about state historic resources.

Mr. Wolfe has also determined that there will be no impact on small or micro-businesses as a result of implementing these rules.

Comments on the proposal may be submitted to Mark Wolfe, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

These amendments are proposed under the authority of Texas Government Code §442.005(b), which designates the Commission as the agency responsible for the administration of the Antiquities Code of Texas; Texas Government Code §442.005(q), which provides the Commission with the authority to promulgate rules to reasonably affect the purposes of the Commission; Texas Government Code §442.0051, which allows the Commission, by rule, to establish reasonable fees for commission purposes; Texas Natural Resources Code §191.092, which requires the Commission to adopt rules to establish the criteria for designation for publicly-owned landmarks; and Texas Natural Resources Code §191.096, which requires any site on private land which is designated a landmark to be marked as a landmark.

No other statutes, articles, or codes are affected by these amendments.

§26.8.Designation Procedures for Publicly Owned Landmarks.

(a) Nomination. Any group, public or private, individual, or public agency may submit a property in public ownership to the commission for official designation as a landmark. The nomination must be submitted to the commission on a form approved by the commission, and the commission will determine whether the nomination is complete. The nomination shall indicate the nature of the property's significance: as an archeological site, shipwreck, cache or collection, historic building or structure, or any combination thereof, per the criteria for evaluation specified in §§26.10 - 26.12 and §26.19 of this title.

(1) Third-party nominations. Any private individual or private group that desires to nominate a property owned by a political subdivision as a landmark must complete and return to the commission a nomination form, and must give notice of the nomination at the individual's or group's own expense, in a newspaper of general circulation published in the city, town, or county in which the building, structure or site is located. If no newspaper of general circulation is published in the city, town, or county, the notice must be published in a newspaper of general circulation in an adjoining or neighboring county that is circulated in the county of the applicant's residence. The notice must:

(A) be printed in 12-point boldface type;

(B) include the exact location of the building or site; and

(C) include the name of the group or individual nominating the building or site.

(D) An original copy of the notice and an affidavit of publication signed by the newspaper's publisher must be submitted to the commission with a nomination form. The commission will not consider a site owned by a political subdivision for designation as a landmark unless the notice and affidavit required by this section are attached to a nomination form. This notification must be received by both the commission and the public agency a minimum of 60 days prior to a regularly scheduled public meeting of the commission at which the nomination may be considered. All decisions regarding when a nomination will be considered by the commission will be made by the executive director of the commission.

(2) Requirements for buildings and structures. Nominations for buildings and structures must be accompanied by a deed or other legal description of the property nominated for designation. For a building or structure owned by a political subdivision, the nomination may be accompanied by a statement assessing fiscal impacts of the potential designation on the political subdivision.

(b) Evaluation. The executive director of the commission will determine whether the nomination is complete and acceptable, whether the property is eligible for designation, and when the nomination will be placed on the agenda of one of the commission's public meetings. In support of such determinations, the commission's staff will review the property according to the criteria for evaluation specified in §§26.10 - 26.12 and §26.19 of this title. Staff will recommend whether the nature of the property's significance indicated on the nomination form is accurate and if other areas should be considered.

(c) Notification of nomination. If the commission's staff wishes to nominate a property for landmark designation or intends to forward a nomination received for consideration, it must give the public agency or agencies that own the property a written notification that a nomination will be considered by the commission at one of its regularly scheduled public meetings. This notification must be received by the public agency a minimum of 15 days prior to the regularly scheduled public meeting of the commission at which the nomination is scheduled to be presented. The commission must also send the public agency complete site information on the proposed nomination. For a building or structure owned by a political subdivision, the notification will invite the political subdivision to submit a statement assessing the fiscal impacts of the potential designation.

(d) Interim protection and notification. Once a valid nomination for a landmark building or structure has been received and the commission's staff determines the property is eligible for designation, no project work may be undertaken on the property without a permit issued by the commission unless or until the commission denies the nomination or designation. Information regarding this protection will be included in the commission's notice on the nomination to the property owner.

(e) Presentation of nominations. Following staff evaluation and recommendations, nominations will be presented to the Antiquities Advisory Board. Written notice of the presentation will be sent to the owner. The Antiquities Advisory Board will review each nomination, the staff recommendations related to each nomination, and any testimony given by the owner of the property and the public at large. The Antiquities Advisory Board will then pass on its recommendations regarding each nomination to the commission. The chair of the Antiquities Advisory Board, or one of the other commission members who serve on the board, will present the nomination and recommendations to the commission at one of its public meetings.

(f) Comment period. No vote on final designation may be taken by the commission for a minimum period of 30 days, during which time all concerned parties may present evidence in support of or against designation of the property. Comments may be submitted to the commission at any time prior to the designation vote described in subsection (g) of this section, including during public testimony at the commission meeting where the vote will occur. Comments should address the property's merits in light of the criteria specified in §§26.10 - 26.12 and §26.19 of this title.

(1) Political subdivisions. Comments may address the fiscal impact on a political subdivision from the designation of a building or structure owned by the political subdivision, per §191.092(h) of the Texas Natural Resources Code.

(2) Institutions of higher education. Comments may address the impact on an institution of higher education from the designation of a building or land owned by the institution. If an institution of higher education notifies the commission during this timeframe that it protests to the proposed designation of a building or land under its control as a landmark, the matter becomes a contested case under the provisions of the Administrative Procedure Act, Texas Government Code, Chapter 2001. The hearing officer and the commission will follow the procedures and take into account the criteria listed in §191.021(b) of the Texas Natural Resources Code. Weighing these criteria against the criteria specified in §§26.10 - 26.12 and §26.19 of this title, the commission shall designate a property under the control of an institution of higher education as a landmark only if the record before the commission establishes by clear and convincing evidence that such designation would be in the public interest.

(g) Presentation of designation and designation vote. After the minimum comment period of 30 days has elapsed, the commission may consider the property for designation at one of its public meetings. The owners of the property will be informed of the agenda by written notice at least 15 calendar days in advance of the meeting date. Any person may present evidence or testify at the meeting when the final decision is to be made. The commission may then vote to designate, to deny designation, to request further information, or to make any other decision.

(h) Additional evidence. If designation of a property is denied, the owner or applicant may present additional evidence at any time for the commission's reconsideration. The new evidence will be considered by the commission at a duly-noticed meeting.

(i) Additional hearings. Any owner of a property designated as a landmark who is aggrieved by the designation procedure as applied to his or her property will receive a full evidentiary hearing upon request, or the formal designation can be removed by action of the commission.

(j) Notification of designation. Written notification of the commission's decision regarding the designation of a property as a landmark will be forwarded to the owner and nominator. The nominator and owner will also receive an application for requesting a landmark medallion.

(k) Listing and marking of landmarks. If a property is officially designated as a landmark, the property will be listed in the commission's inventory, a current list of all historic buildings, structures, sites, objects, and districts so designated. Landmarks may also be marked with a marker or medallion, to be installed by commission staff or designee, if requested by the nominator or owner.

(1) Archeological sites designated as landmarks may be marked with a landmark marker, if deemed appropriate by the commission. The UTM coordinate of the marker will be retained in the commission's records.

(2) Historic buildings and structures designated as landmarks may be marked with a medallion bearing the words "State Antiquities Landmark". Third-party nominators and owners will be provided with an application for requesting a landmark medallion. The application and payment must be received by the Commission before the medallion will be ordered and installed. If a medallion is installed, a [shall pay the cost associated with the medallion. A] photograph of the installed medallion showing its context will be retained in the commission's records.

(l) Privileged or restricted information. The location of archeological sites is not public information. However, information on sites may be disclosed to qualified professionals as provided by Chapter 24 of this title (relating to Restricted Cultural Resource Information).

(m) For previously designated landmarks, commission staff may propose an amendment to clarify the designation boundaries, nature of the property's significance, or other information pertinent to the designation. The commission shall follow the process in this section in considering such an amendment.

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 May 5, 2017.

TRD-201701817

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: June 18, 2017

For further information, please call: (512) 463-5853


13 TAC §26.9

The Texas Historical Commission (Commission) proposes amendments to §26.9, concerning the application process for designations for privately-owned landmarks. These amendments clarify the processes for casting of medallions for publicly and privately-owned landmarks.

The Texas Antiquities Code also allows a site on private land to be designated as a landmark with the written consent of the landowner. If a site on private land is designated as a landmark, the Texas Natural Resources Code §191.096 requires a medallion designating the landmark to be placed at the site. This amendment to §26.9 clarifies the process for the casting of a medallion for privately-owned landmarks.

Mark Wolfe, Executive Director, has determined that for the first five-year period the amended rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering these rules.

Mr. Wolfe has also determined that for the first five-year period the amended rule is in effect, the public benefit will be the preservation of and education about state historic resources.

Mr. Wolfe has also determined that there will be no impact on small or micro-businesses as a result of implementing these rules.

Comments on the proposal may be submitted to Mark Wolfe, Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

These amendments are proposed under the authority of Texas Government Code §442.005(b), which designates the Commission as the agency responsible for the administration of the Antiquities Code of Texas; Texas Government Code §442.005(q), which provides the Commission with the authority to promulgate rules to reasonably affect the purposes of the Commission; Texas Government Code §442.0051, which allows the Commission, by rule, to establish reasonable fees for commission purposes; Texas Natural Resources Code §191.092, which requires the Commission to adopt rules to establish the criteria for designation for publicly-owned landmarks; and Texas Natural Resources Code §191.096, which requires any site on private land which is designated a landmark to be marked as a landmark

No other statutes, articles, or codes are affected by these amendments.

§26.9.Designation of Private Property.

(a) Designation procedure. Cultural resources of national, state, or local significance in private ownership may be nominated by individuals or institutions holding title to the property on which the resources are located. The nomination must be submitted to the commission on a form approved by the commission. In addition to the nomination requirements listed in §26.8(a) of this title (relating to Designation Procedures for Publicly Owned Landmarks), the nomination must be accompanied by proof of ownership, such as a deed record, and payment for the medallion. The nomination form shall contain language that expressly states the owner's consent to landmark designation by signing the form. A site, building, or structure on privately owned property, which is designated as a landmark by the commission, is afforded the same protection under the Antiquities Code of Texas as resources on public property. The nomination and designation hearing process for the designation of privately owned property will follow the same basic procedures set forth in §26.8 of this title.

(b) Recordation and marking of landmarks on private property. Upon designation, the commission shall record the property owner's consent and notice of the designation in the deed records of the county in which the property is located, provide the property owner with a copy of the filed instrument, and retain a copy of the filed instrument in the commission's records. Landmarks shall be marked with a marker or medallion, to be installed by commission staff or designee immediately after designation.

(1) Archeological sites designated as landmarks shall be marked with a landmark marker. The UTM coordinate of the marker will be retained in the commission's records.

(2) Historic buildings and structures designated as landmarks shall be marked with a medallion bearing the words "State Antiquities Landmark". The property owner shall provide payment for the medallion when the nomination form is submitted to the Commission [pay the cost associated with the medallion as a condition of designation]. A photograph of the installed medallion showing its context will be retained in the commission's records.

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 May 5, 2017.

TRD-201701818

Mark Wolfe

Executive Director

Texas Historical Commission

Earliest possible date of adoption: June 18, 2017

For further information, please call: (512) 463-5853