Proposed Rules Title 22

TITLE 22. EXAMINING BOARDS

The Texas Optometry Board proposes amendments to 22 TAC Chapter 279, §279.1 - Contact Lens Examination.

The rules in the Chapter 279 were reviewed as a result of the Board's general rule review under Texas Government Code Section 2001.039. Notice of the review was published in the June 10, 2022, issue of the Texas Register (47 TexReg 3487). No comments were received regarding the Board's notice of review.

The Board has determined that there continues to be a need for the rules in Chapter 279. The Board has also determined that changes to §279.1 as currently in effect are necessary.

The amendment requires the optometrist or therapeutic optometrist to personally "examine" instead of personally "make" certain findings during an initial visit. It states that the findings must be made unless prohibited by the patient's unique condition instead of "if possible." It requires the optometrist or therapeutic optometrist to personally notate why it is not possible to record the required findings.

It clarifies that for discipline purposes, the charges must state the specific instances in which it is alleged that the optometrist or therapeutic optometrist did not comply with the rule.

Finally, the amendment makes non-substantive capitalization changes to ensure consistency across the Board's rules.

Janice McCoy, Executive Director, has determined that for the first five-year period the amended rule is in effect, there will not be fiscal implications for state and local governments as a result of amending this existing rule.

Janice McCoy, Executive Director, has determined that for each of the first five years the amendment is in effect, the public benefit is patient protection to ensure the examination is done accurately and completely.

Legal counsel for the Board has reviewed the amended rule and has found it to be within the Board's authority to propose.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS ON SMALL BUSINESSES AND RURAL COMMUNITIES: There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the amendment. Since the agency has determined that the amendment to the rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ENVIRONMENT AND TAKINGS IMPACT ASSESSMENT: The agency has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code §2001.0225. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. The agency has determined that the proposed amendment does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT: During the first five years that the amended rule will be in effect, it is anticipated that the amendment will not create or eliminate a government program as no program changes are proposed. Further, implementation of the amended rule will not require the creation of a new employee position or the elimination of an existing employee position; will not increase or decrease future legislative appropriations to the agency; will not increase or decrease fees paid to the agency; does not impact the number of individuals subject to the rule's applicability; does not positively or adversely impact the state's economy. The amendment does not create a new regulation nor does it expand, limit, or repeal an existing regulation.

PUBLIC COMMENTS: Comments on the amended rule may be submitted electronically to: janice.mccoy@tob.texas.gov or in writing to Janice McCoy, Executive Director, Texas Optometry Board, 1801 N. Congress, Suite 9.300, Austin, Texas 78701. The deadline for furnishing comments is thirty days after publication in the Texas Register.

Amendments to §279.1 - Contact Lens Examination are being proposed under the Texas Optometry Act, Texas Occupations Code, §351.151 and §351.353.

No other sections are affected by the amendments.

§279.1.Contact Lens Examination.

(a) The optometrist or therapeutic optometrist shall, in the initial examination of the patient for whom contact lenses are prescribed:

(1) Personally examine [~~make~~] and record, unless prohibited by the patient's unique condition [~~if possible~~], the following findings of the conditions of the patient as required by §351.353 of the Act:

(A) biomicroscopy examination (lids, cornea, sclera, etc.), using a binocular microscope;

(B) internal ophthalmoscopic examination (media, fundus, etc.), using an ophthalmoscope or biomicroscope with fundus condensing lenses; videos and photographs may be used only for documentation and consultation purposes but do not fulfill the internal ophthalmoscopic examination requirement; and

(2) Either personally make and record or authorize an assistant present in the same office with the optometrist or therapeutic optometrist to make and record the following findings required by §351.353 of the Act. The authorization for assistants to make and record the following findings does not relieve the optometrist or therapeutic optometrist of professional responsibility for the proper examination and recording of each finding required by §351.353 of the Act:

(A) case history (ocular, physical, occupational, and other pertinent information);

(B) visual acuity;

(D) assessment of binocular function;

(E) amplitude or range of accommodation;

(F) tonometry; and

(G) angle of vision: [,] to right and to left; [.]

(3) The optometrist or therapeutic optometrist shall personally [~~Personally~~] notate in the patient's record the reasons why it is not possible to make and record the findings required in subsection (a) of this section;

(4) When a follow-up visit is medically indicated, schedule the follow-up visit within 30 days of the contact lens fitting, and inform the patient on the initial visit regarding the necessity for the follow-up care; and

(5) Personally or authorize an assistant to instruct the patient in the proper care of lenses.

(b) The optometrist or therapeutic optometrist and assistants shall observe proper hygiene in the handling and dispensing of the contact lenses and in the conduct of the examination. Proper hygiene includes sanitary office conditions, running water in the office where contact lenses are dispensed, and proper sterilization of diagnostic lenses and instruments.

(c) The fitting of contact lenses may be performed only by a licensed physician, optometrist, or therapeutic optometrist. Ophthalmic dispensers may make mechanical adjustments to contact lenses and dispense contact lenses only after receipt of a fully written contact lens prescription from a licensed optometrist, therapeutic optometrist, or a licensed physician. An ophthalmic dispenser shall make no measurement of the eye or the cornea or evaluate the physical fit of the contact lenses, by any means whatever, subject solely and only to the exception contained in the §351.005 of the Act.

(d) The willful or repeated failure or refusal of an optometrist or therapeutic optometrist to comply with any of the requirements in the Act, §351.353 and §351.359, shall be considered by the Board [~~board~~] to constitute prima facie evidence that the licensee is unfit or incompetent by reason of negligence within the meaning of the Act, §351.501(a)(2), and shall be sufficient ground for the filing of charges to cancel, revoke, or suspend the license. The charges shall state the specific instances in which it is alleged that the optometrist or therapeutic optometrist did not comply with the rule [~~was not complied with~~]. After the Board [~~board~~] has produced evidence of the omission of a finding required by §351.353, the burden shifts to the licensee to establish that the making and recording of the findings was not possible.

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 7, 2022.

TRD-202204445

Janice McCoy

Executive Director

Texas Optometry Board

Earliest possible date of adoption: December 25, 2022

For further information, please call: (512) 305-8500

22 TAC §279.2

The Texas Optometry Board proposes amendments to 22 TAC Chapter 279, §279.2 - Contact Lens Prescriptions.

The Board has determined that there continues to be a need for the rules in Chapter 279. The Board has also determined that changes to §279.2 as currently in effect are necessary.

The amendment deletes the word "manually" when describing the signature on a prescription as many prescriptions are digitally written or transmitted. It deletes the section related to faxing prescriptions.

It prohibits an optometrist or therapeutic optometrist from signing or causing to be signed an ophthalmic lens prescription without first personally examining the eyes for whom the prescription is made pursuant to Section 351.435 of the Optometry Act. It specifies that an optometrist or therapeutic optometrist is responsible for the prescriptions signed under the practitioner's name even if they are produced by non-clinical staff. And it requires a licensee to report to the Board within seven business days if the licensee discovers a prescription for lenses was issued without his knowledge or permission.

Finally, it makes non-substantive capitalization changes to ensure consistency across the Board's rules.

Janice McCoy, Executive Director, has determined that for each of the first five years the amendment is in effect, the public benefit is patient protection to ensure prescriptions for contact lenses are accurate and complete.

Legal counsel for the Board has reviewed the amended rule and has found it to be within the Board's authority to propose.

Amendments to §279.2 - Contact Lens Prescriptions are being proposed under the Texas Optometry Act, Texas Occupations Code, §351.151 and §351.357.

No other sections are affected by the amendments.

§279.2.Contact Lens Prescriptions.

(a) Prescription. A prescription for contact lenses is defined as a written order [~~manually~~] signed by the examining optometrist, therapeutic optometrist, or physician, or a written order [~~manually~~] signed by an optometrist, therapeutic optometrist, or physician authorized by the examining doctor to issue the prescription.

(1) If the prescription is signed by the examining optometrist or therapeutic optometrist, the prescription may be signed electronically, provided that:

(A) the prescription is electronically signed by the practitioner using a system which electronically replicates the practitioner's manual signature on the written prescription; and

(B) the security features of the system require the practitioner to authorize each use.

(2) If the prescription is signed by a doctor other than the examining optometrist, therapeutic optometrist, or physician, the prescription must contain:

(A) the name of the examining doctor; and

(B) the license number of both the examining doctor and the doctor signing the prescription.

(b) Applicable Law. A contact lens prescription must comply with the requirements of the Texas Optometry Act, Sections 351.005, 351.356, 351.357, 351.359, and 351.607, and the Contact Lens Prescription Act, Sections 353.152, 353.153 and 353.158 and federal law, 15 U.S.C. Sections 7601 - 7610 (Public Law 108-164).

(c) Contents of Prescription. A fully written contact lens prescription must contain all information required to accurately dispense the contact lens, including:

(1) patient's name;

(2) the name, postal address, telephone number, and facsimile telephone number of the prescribing optometrist or therapeutic optometrist (required by federal law);

(3) the date of examination (not including date of follow-up examinations) (required by federal law);

(4) date the prescription is issued;

(5) an expiration date of not less than one year, unless a shorter period is medically indicated;

(6) examining optometrist's signature or authorized signature;

(7) name of the lens manufacturer, if required to accurately dispense the lens;

(8) lens brand name, including:

(A) a statement that brand substitution is permitted if the optometrist intends to authorize a contact lens dispenser to substitute the brand name; [,] and

(B) name of manufacturer, trade name of private label brand, and, if applicable, trade name of equivalent brand name when the prescribed brand name is not available to the optical industry as a whole, unless the prescribing of a proprietary lens brand is medically indicated;

(9) lens power;

(10) lens diameter, unless set by the manufacturer;

(11) base curve, unless set by the manufacturer; and

(12) number of lenses and recommended replacement interval.

(d) Release of Prescription, Timing. Regardless of whether the release is requested by the patient, the optometrist or therapeutic optometrist shall release a prescription once the parameters of the prescription are determined. An exception to this requirement exists if the optometrist or therapeutic optometrist determines that because of a medical indication further monitoring is required, and the optometrist or therapeutic optometrist gives the patient a verbal explanation of the reason the prescription is not released and documents in the patient's records a written explanation of the reason.

(e) Release of Prescription, Method. An optometrist or therapeutic optometrist shall issue a prescription by giving or delivering an original signed copy of the prescription to the patient or to another person in accordance with subsection (d) of this section [~~above~~].

[(f) Faxing Prescription. When directed by a dispenser designated to act on behalf of the patient, an optometrist or therapeutic optometrist shall fax an original signed prescription to the dispenser. When faxing a prescription, the optometrist or therapeutic optometrist shall write "by fax" or similar wording on the original prescription prior to faxing.

(f) [~~(g)~~] Verification of Prescription. An optometrist or therapeutic optometrist shall verify a prescription when a dispenser designated to act on behalf of the patient requests a verification by telephone, facsimile, or electronic mail.

(g) [~~(h)~~] Verification Procedure. A dispenser designated to act on behalf of the patient is required to provide the optometrist or therapeutic optometrist with the following information when seeking a verification of a prescription:

(1) the patient's full name and address;

(2) contact lens power, manufacturer, base curve or appropriate designation, and diameter, as appropriate;

(3) quantity of lenses ordered;

(4) the date on which the patient requests lenses to be ordered or dispensed;

(5) the date and time of the verification request; and

(6) the name, telephone number, and facsimile number of a person at the contact lens dispenser's company with whom to discuss the verification.

(h) [~~(i)~~] Verification Requirements. If the format of the verification request allows, the optometrist or therapeutic optometrist, when verifying a prescription, should provide the contact lens dispenser with all of the information required in subsection (c) of this section [~~title~~]. An optometrist or therapeutic optometrist who did not perform the examination, may verify a prescription according to subsection (a) of this section [~~title~~], providing to the dispenser the name and license number of the examining doctor if the format of the verification request so allows. Each request for a prescription verification should be recorded in the patient record, including the name of the dispenser, the date verification is requested, number of lenses requested, and response of the optometrist or therapeutic optometrist.

(i) [~~(j)~~] Inaccurate or Invalid Verification. A contact lens dispenser seeking a contact lens prescription verification shall not fill the prescription if an optometrist or therapeutic optometrist informs a dispenser that the contact lens prescription is inaccurate, expired, or otherwise invalid. An optometrist or therapeutic optometrist is required to communicate the basis for the inaccuracy or invalidity of the prescription. If the prescription communicated by the dispenser to the optometrist or therapeutic optometrist is inaccurate or invalid, the optometrist or therapeutic optometrist is required to provide the correct information to the dispenser. A dispenser may dispense lenses without verification if an optometrist or therapeutic optometrist fails to communicate with the dispenser within 8 business hours, or a similar time as defined by the Federal Trade Commission.

(j) [~~(k)~~] Number of Lenses. An optometrist or therapeutic optometrist dispensing contact lenses shall record on the prescription the number of lenses dispensed and return the prescription to the person. If all the contact lenses authorized by the prescription are dispensed by an optometrist or therapeutic optometrist, the following procedure complies with state law and should not be in conflict with federal law: the optometrist or therapeutic optometrist writes on the prescription "All Lenses Dispensed," makes a copy of the prescription to retain in the licensee's records, and returns the original to the person presenting the prescription.

(k) [~~(l)~~] Extension. The Contact Lens Prescription Act requires an optometrist or therapeutic optometrist to authorize, upon request of the patient, a one-time [~~one time~~], two-month [~~two month~~] extension of the contact lens prescription.

(l) [~~(m)~~] Private Labels. The prescribing optometrist or therapeutic optometrist has the authority to specify any and all parameters of an optical prescription for the therapeutic and visual health and welfare of a patient, but the prescription shall not contain restrictions limiting the parameters to private labels not available to the optical industry as a whole, unless the prescribing of a proprietary lens brand is medically indicated. The specifications of the prescription may not be altered without the consent of the prescribing doctor.

(m) [~~(n)~~] Fee. The Contact Lens Prescription Act prohibits an optometrist or therapeutic optometrist from charging the patient a fee in addition to the examination fee and the fitting fee as a condition for giving a contact lens prescription to the patient or verifying a prescription according to subsections [~~(g) and~~] (h) and (i) of this section. An optometrist or therapeutic optometrist may not refuse to release a prescription solely because charges assigned or presented for payment to an insurance carrier, health maintenance organization, managed care entity, or similar entity have not been paid by that entity.

(n) [~~(o)~~] Fitting Process. An optometrist or therapeutic optometrist may charge a fitting fee that includes fees for lenses required to be used in the fitting process. The fitting process may include the initial eye examination, an examination to determine the specifications of the contact lenses, and follow-up examinations that are medically necessary. Unless medically necessary, the optometrist or therapeutic optometrist may not require the patient to purchase a quantity of lenses in excess of the lenses the optometrist or therapeutic optometrist was required to purchase to complete the fitting process.

(o) An optometrist or therapeutic optometrist may not sign, or cause to be signed, an ophthalmic lens prescription without first personally examining the eyes for whom the prescription is made pursuant to Section 351.435 of the Optometry Act. An optometrist or therapeutic optometrist is responsible for the prescriptions signed under the practitioner's name even if they are produced by non-clinical staff. Should a licensee discover a prescription for lenses was issued without his knowledge or permission, the licensee shall report it to the Board within seven business days.

(p) The Executive Commissioner [~~executive commissioner~~] of the Health and Human Services Commission and the Executive Director [~~executive director~~] of the Texas Optometry Board may enter into interagency agreements as necessary to implement and enforce 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 November 7, 2022.

TRD-202204446

Janice McCoy

Executive Director

Texas Optometry Board

Earliest possible date of adoption: December 25, 2022

For further information, please call: (512) 305-8500

22 TAC §279.3

The Texas Optometry Board proposes amendments to 22 TAC Chapter 279, §279.3 - Spectacle Examination.

The Board has determined that there continues to be a need for the rules in Chapter 279. The Board has also determined that changes to §279.3 as currently in effect are necessary.

The amendment requires the optometrist or therapeutic optometrist to personally examine instead of personally make certain findings during an initial visit. It states that the findings must be made unless prohibited by the patient's unique condition instead of "if possible." It requires the optometrist or therapeutic optometrist to personally notate why it is not possible to record the required findings.

It clarifies that for discipline purposes, the charges must state the specific instances in which it is alleged that the optometrist or therapeutic optometrist did not comply with the rule.

Finally, the amendment makes non-substantive capitalization changes to ensure consistency across the Board's rules.

Legal counsel for the Board has reviewed the amended rule and has found it to be within the Board's authority to propose.

Amendments to §279.3 - Spectacle Examination are being proposed under the Texas Optometry Act, Texas Occupations Code, §351.151 and §351.353.

No other sections are affected by the amendments.

§279.3.Spectacle Examination.

(a) The optometrist or therapeutic optometrist shall, in the initial examination of the patient for whom ophthalmic lenses are prescribed:

(A) biomicroscopy examination (lids, cornea, sclera, etc.), using a binocular microscope;

(A) case history (ocular, physical, occupational, and other pertinent information);

(B) visual acuity;

(D) assessment of binocular function;

(E) amplitude or range of accommodation;

(F) tonometry; and

(G) angle of vision: [,] to right and to left; and [.]

(3) Personally notate in the patient's record the reasons why it is not possible to make and record the findings required in this section.

(b) The willful or repeated failure or refusal of an optometrist or therapeutic optometrist to comply with any of the requirements in the Act, §351.353 and §351.359, shall be considered by the Board [~~board~~] to constitute prima facie evidence that the licensee is unfit or incompetent by reason of negligence within the meaning of the Act, §351.501(a)(2), and shall be sufficient ground for the filing of charges to cancel, revoke, or suspend the license. The charges shall state the specific instances in which it is alleged that the optometrist or therapeutic optometrist did not comply with the rule [~~was not complied with~~]. After the Board [~~board~~] has produced evidence of the omission of a finding required by §351.353, the burden shifts to the licensee to establish that the making and recording of the findings was not possible.

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 7, 2022.

TRD-202204447

Janice McCoy

Executive Director

Texas Optometry Board

Earliest possible date of adoption: December 25, 2022

For further information, please call: (512) 305-8500

22 TAC §279.4

The Texas Optometry Board proposes amendments to 22 TAC Chapter 279, §279.4 - Spectacle and Ophthalmic Devices Prescriptions.

The rules in the Chapter 279 were reviewed as a result of the Board’s general rule review under Texas Government Code Section 2001.039. Notice of the review was published in the June 10, 2022, issue of the Texas Register (47 TexReg 3487). No comments were received regarding the Board’s notice of review.

The Board has determined that there continues to be a need for the rules in Chapter 279. The Board has also determined that changes to §279.4 as currently in effect are necessary.

The amendment deletes the word "manually" when describing the signature on a prescription as many prescriptions are digitally written or transmitted. It deletes instructions related to faxing prescriptions.

Legal counsel for the Board has reviewed the amended rule and has found it to be within the Board's authority to propose.

ENVIRONMENT AND TAKINGS IMPACT ASSESSMENT: The agency has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code §2001.0225. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. The agency has determined that the proposed amendment does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action, and therefore does not constitute a taking under Texas Government Code §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT: During the first five years that the amended rule will be in effect, it is anticipated that the amendment will not create or eliminate a government program as no program changes are proposed. Further, implementation of the amended rule will not require the creation of a new employee position or the elimination of an existing employee position; will not increase or decrease future legislative appropriations to the agency; will not increase or decrease fees paid to the agency; does not impact the number of individuals subject to the rule’s applicability; does not positively or adversely impact the state’s economy. The amendment does not create a new regulation nor does it expand, limit, or repeal an existing regulation.

Amendments to §279.4 - Spectacle and Ophthalmic Devices Prescriptions are being proposed under the Texas Optometry Act, Texas Occupations Code, §351.151 and §351.356.

No other sections are affected by the amendments.

§279.4.Spectacle and Ophthalmic Devices Prescriptions.

(a) A prescription for spectacles or ophthalmic devices is defined as a written order [~~manually~~] signed by the examining optometrist, therapeutic optometrist or physician, or a written order [~~manually~~] signed by an optometrist, therapeutic optometrist or physician authorized by the examining doctor to issue the prescription. If the prescription is signed by the examining optometrist or therapeutic optometrist, the prescription may be signed electronically, provided that:

(1) the prescription is electronically signed by the practitioner using a system which electronically replicates the practitioner's manual signature on the written prescription; and

(2) the security features of the system require the practitioner to authorize each use.

(b) An optometrist or therapeutic optometrist may issue a duplicate prescription in the following manner:

(1) giving or delivering an original signed copy of the prescription to the patient or to another person when requested by the patient;

(2) faxing an original signed prescription to a person authorized to fill the prescription[~~. When faxing a prescription, the optometrist or therapeutic optometrist shall write "by fax" or similar wording on the original prescription prior to faxing~~];

(3) transmitting a complete prescription as defined in this section, to a person authorized to fill the prescription, by email or other computerized electronic means. When transmitting a prescription by computerized electronic means, including e-mail, the optometrist or therapeutic optometrist shall attach a digital signature in a commonly recognized format. The computerized electronic transmission shall also include the office address and license number of the optometrist or therapeutic optometrist; or

(4) if the optometrist or therapeutic optometrist determines that the patient needs an emergency refill of the spectacle prescription, the prescription may be telephoned to a person authorized to fill the prescription.

(c) If the prescription is signed by a doctor other than the examining optometrist, therapeutic optometrist or physician, the prescription must contain:

(1) the name of the examining doctor; and

(2) the license number of both the examining doctor and the doctor signing the prescription.

(d) The prescribing optometrist or therapeutic optometrist has the authority to specify any and all parameters of an optical prescription for the therapeutic and visual health and welfare of a patient, but the prescription shall not contain restrictions limiting the parameters to private labels not available to the optical industry as a whole, unless the prescribing of a proprietary lens brand is medically indicated. The specifications of the prescription may not be altered without the consent of the prescribing doctor.

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 7, 2022.

TRD-202204448

Janice McCoy

Executive Director

Texas Optometry Board

Earliest possible date of adoption: December 25, 2022

For further information, please call: (512) 305-8500

22 TAC §279.11, §279.12

The Texas Optometry Board proposes amendments to 22 TAC Chapter 279, Interpretations.

The Board has determined that there continues to be a need for the rules in Chapter 279. The Board has also determined that changes to certain rules as currently in effect are necessary. The changes outlined in this proposal are non-substantive in that they update capitalization in order for the language across the entirety of Chapter 279 to be consistent.

The specific rules being amended for capitalization include: §279.11 - Relationship with Dispensing Optician - Books and Records and §279.12 - Relationship with Dispensing Optician - Separation of Offices. The amendments include changing the reference from "legislature" to "Texas Legislature" and "board" to "Board."

Additionally, §279.11 is amended to add "or therapeutic optometry" in subsections (a) and (b) when describing the "practice of optometry." This amendment is consistent across the Chapter in that references to the practice of use both "optometry" and "therapeutic optometry."

Janice McCoy, Executive Director, has determined that for each of the first five years the amended rule is in effect, the public benefit is consistency in language across the agency's rules.

Legal counsel for the Board has reviewed the amended rules and has found them to be within the Board's authority to propose.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS ON SMALL BUSINESSES AND RURAL COMMUNITIES: There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the amended rules. Since the agency has determined that the amended rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ENVIRONMENT AND TAKINGS IMPACT ASSESSMENT: The agency has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code §2001.0225. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. The agency has determined that the proposed amendments do not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action, and therefore does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENTS: Comments on the proposed rule may be submitted electronically to: janice.mccoy@tob.texas.gov or in writing to Janice McCoy, Executive Director, Texas Optometry Board, 1801 N. Congress, Suite 9.300, Austin, Texas 78701. The deadline for furnishing comments is thirty days after publication in the Texas Register.

Amendments to §279.11 - Relationship with Dispensing Optician - Books and Records and §279.12 - Relationship with Dispensing Optician - Separation of Offices are being proposed under the Texas Optometry Act, Texas Occupations Code, §351.151, §351.459, and §351.460.

No other sections are affected by the amendments.

§279.11.Relationship with Dispensing Optician - Books and Records.

(a) Texas Optometry Act, §351.364, relating to relationships with dispensing opticians, states: The purpose of this section is to insure that the practice of optometry or therapeutic optometry shall be carried out in such a manner that it is completely and totally separated from the business of any dispensing optician, with no control of one by the other and no solicitation for one by the other.

(b) It is therefore the interpretation of this Board [~~board~~] that an optometrist or therapeutic optometrist practicing under his own name and dispensing, repairing, or duplicating lenses and/or frames in his own office as part of his optometric practice would not be required to keep separate records or books by virtue of the fact that it is all part of his practice of optometry and not a separate dispensing business.

§279.12.Relationship with Dispensing Optician - Separation of Offices.

(a) The Texas Optometry Act, §351.364(a), requires that the space occupied by the optometrist or therapeutic optometrist shall be separated from the space occupied by the dispensing optician by solid partitions or walls from floor to ceiling. The intent of the Texas Legislature [~~legislature~~] in passing §351.364 is specifically spelled out in §351.364(d) and is to insure that the practices of optometry and therapeutic optometry shall be carried out in such a manner that they are completely and totally separated from the business of any dispensing optician.

(b) In light of the overriding legislative intent in passing §351.364 that the practices of optometry and therapeutic optometry be completely and totally separate from the business of any dispensing optician, it is the interpretation of the Board [~~board~~] that §351.364(a), set forth in subsection (a) of this section, prohibits the space occupied by an optometrist or therapeutic optometrist and space occupied by a dispensing optician from being joined by a wall in which there is a door, either locked or unlocked.

Filed with the Office of the Secretary of State on November 7, 2022.

TRD-202204451

Janice McCoy

Executive Director

Texas Optometry Board

Earliest possible date of adoption: December 25, 2022

For further information, please call: (512) 305-8500

22 TAC §279.13

The Texas Optometry Board proposes to amend 22 TAC §279.13, concerning Board Interpretation Number Thirteen.

Rule 279.13 was first adopted in 1992 and amended in 1993 and 1999. The rule references §5.04(5) of Vernon's Civil Statutes - which was codified as §351.455 of the Texas Occupations Code in 1999. The Board has interpreted the statute to prohibit licensees from unsolicited house-to-house business and continues to support that prohibition. This amendment would update the statutory reference and allow that follow-up care can be accomplished through telehealth services.

Additionally, the amendment would update the rule title to provide better clarity of the rule's content.

Janice McCoy, Executive Director, has determined that the public benefit of amending the rule is that the location of the place of practice being specifically within 100 miles of the off-site examination is no longer necessary as the Board has instituted other rules that safeguard the visual welfare of the public.

Legal counsel for the Board has reviewed the rule and has found it to be within the Board's authority to amend.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS ON SMALL BUSINESSES AND RURAL COMMUNITIES: There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed amendment. Since the agency has determined that the proposed amendment will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ENVIRONMENT AND TAKINGS IMPACT ASSESSMENT: The agency has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code §2001.0225. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. The agency has determined that the proposed amendment does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action, and therefore does not constitute a taking under Texas Government Code §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT: During the first five years that the amended rule will be in effect, it is anticipated that the amendment will not create or eliminate a government program as no program changes are proposed. Further, implementation of the amended rule will not require the creation of a new employee position or the elimination of an existing employee position; will not increase or decrease future legislative appropriations to the agency; will not increase or decrease fees paid to the agency; does not impact the number of individuals subject to the rule’s applicability; does not positively or adversely impact the state’s economy. The amendment does not create a new regulation nor does it expand, limit, or repeal an existing regulation.

PUBLIC COMMENTS: Comments on the proposed amendment may be submitted electronically to: janice.mccoy@tob.texas.gov or in writing to Janice McCoy, Executive Director, Texas Optometry Board, 1801 N. Congress, Suite 9.300, Austin, Texas 78701. The deadline for furnishing comments is thirty days after publication in the Texas Register.

Amendments to §279.13, is being proposed under Texas Occupations Code §351.151 and §351.455. No other sections are affected by the amendments.

§279.13.Professional Responsibility for Off-Site Examinations: Improper Solicitation of Patients [~~Board Interpretation Number Thirteen~~].

(a) The Texas Optometry Act was enacted in part to safeguard the visual welfare of the public and the optometrist-patient relationship and to fix professional responsibility with respect to the patient.

(b) In order to comply with these objectives and to assure patients will have adequate follow-up care, this rule applies to licensed optometrists or therapeutic optometrists who practice optometry or therapeutic optometry, including the examination and prescribing or supplying of lenses to patients away from their place of practice such as[~~, at~~]:

(1) a nursing home or other abode to patients confined therein,

(2) an industrial site, when requested to do so, or

(3) a school site when requested to do so by the school administration.[,]

(c) The optometrist or therapeutic optometrist must have an office location or place of practice within reasonable traveling distance [~~100 miles~~] of such examination site, or, in the alternative must have made arrangements, confirmed in writing prior to offering or providing services, for continued care with a qualified eye health professional with an office location or place of practice within reasonable traveling distance [~~100 miles~~] of such examination site, or assured telehealth access for continued care.

(d) Failure to comply with this rule shall be deemed as practicing from house-to-house and the improper solicitation of patients in violation of the Act, §351.455 [~~§ 5.04(5)~~]. In addition, the optometrist must comply with the requirements of §351.351 [~~§ 5.02~~] to maintain current information regarding practice locations with the board office.

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 7, 2022.

TRD-202204449

Janice McCoy

Executive Director

Texas Optometry Board

Earliest possible date of adoption: December 25, 2022

For further information, please call: (512) 305-8500

22 TAC §279.15

The Texas Optometry Board proposes amendments to 22 TAC Chapter 279, §279.15 - Board Interpretation Number Fifteen.

The Board has determined that there continues to be a need for the rules in Chapter 279. The Board has also determined that changes to §279.15 as currently in effect are necessary.

Section 279.15 was first adopted in 1995 and amended in 1998. The rule references §5.08(a) of Vernon's Civil Statutes - which was codified as §351.454 of the Texas Occupations Code in 1999.

This amendment updates the title to better reflect the rule's purpose of prohibiting practice when the licensee knowingly suffering from a contagious or infectious disease and it updates the reference to the current statutory authority.

Janice McCoy, Executive Director, has determined that for each of the first five years the amendment is in effect, the public benefit is clarifying the prohibition on practicing when the licensee knowingly is suffering from a contagious or infectious disease.

Legal counsel for the Board has reviewed the amended rule and has found it to be within the Board's authority to propose.

ENVIRONMENT AND TAKINGS IMPACT ASSESSMENT: The agency has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code §2001.0225. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. The agency has determined that the proposed amendment does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action, and therefore does not constitute a taking under Texas Government Code §2007.043.

Amendments to §279.15 - Board Interpretation Number Fifteen are being proposed under the Texas Optometry Act, Texas Occupations Code, §351.151 and §351.454.

No other sections are affected by the amendments.

§279.15.Practice with Contagious or Infectious Disease. [~~Board Interpretation Number Fifteen.~~]

(a) The Texas Optometry Act, §351.454 [~~§5.08(a)~~], requires that no licensed optometrist or therapeutic optometrist practice optometry or therapeutic optometry while knowingly suffering from a contagious or infectious disease, if the disease is one that could reasonably be transmitted in the normal performance of optometry or therapeutic optometry.

(b) For purposes of interpretation, a "contagious or infectious disease" is defined as a "disease capable of being transmitted from one person to another by contact or close proximity." Infectious agents transmitted from one person to another by contact or close proximity would include bacteria and viruses.

(c) A licensee shall be deemed practicing while knowingly suffering from an infectious or contagious disease when a medical diagnosis of that disease has been made.

(d) The following include but are not limited to infectious diseases or diseases that can be transmitted:

(1) Infectious agents which may be transmitted by direct contact or by respiratory route include: chickenpox, common cold, infectious mononucleosis, influenza, mycoplasma pneumonia, measles, meningococcal disease, mumps, pertussis, rubella and tuberculosis.

(2) Diseases that could be transmitted by direct contact include: chlamydia trachomatous infections, herpes simplex viruses, staphylococcal infections, streptococcal infections, and bacterial and viral conjunctivitis.

Filed with the Office of the Secretary of State on November 7, 2022.

TRD-202204450

Janice McCoy

Executive Director

Texas Optometry Board

Earliest possible date of adoption: December 25, 2022

For further information, please call: (512) 305-8500

PART 23. TEXAS REAL ESTATE COMMISSION

CHAPTER 535. GENERAL PROVISIONS

SUBCHAPTER R. REAL ESTATE INSPECTORS

22 TAC §535.223

The Texas Real Estate Commission (TREC) proposes amendments to §535.223, Standard Inspection Report Form, in Subchapter R of Chapter 535, General Provisions.

The proposed amendments to §535.223 clarify that when multiple boxes are checked for a particular item on the report form, the inspector must also explain the reason for checking multiple boxes. The proposed amendments also remove single-system inspections from the list of exemptions--meaning the requirements in §535.223 would apply to those inspections.

The Texas Real Estate Inspector Committee recommends the proposed amendments.

Abby Lee, Deputy General Counsel, has determined that for the first five-year period the proposed amendment is 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 section. There is no adverse economic effect anticipated for small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the proposed amendment. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendment. Accordingly, no Economic Impact Statement or Regulatory Flexibility Analysis is required.

Ms. Lee also has determined that for each year of the first five years the sections as proposed is in effect, the public benefit anticipated as a result of the change is improved clarity for license holders and greater consumer protection when engaging a licensed inspector.

For each year of the first five years the proposed amendments are in effect, the amendment 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;

-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 Abby Lee, Deputy General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188, via email to general.counsel@trec.texas.gov, or through the online comment submission form at https://www.trec.texas.gov/rules-and-laws/comment-on-proposed-rules. 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.

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

§535.223.Standard Inspection Report Form.

The Commission adopts by reference Property Inspection Report Form REI 7-6, approved by the Commission for use in reporting inspections results. This document is published by and available from the 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 7-6 adopted by the Commission ("the standard form").

(2) If an inspector uses computer software or other means to produce an inspection report, the inspector must reproduce the text of the standard form verbatim and the spacing, borders and placement of text must be identical to 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;

(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 "Other" subsections of Section I. through Section VI.;

(L) as the inspector deems necessary:

(i) allocate such space for comments in:

(I) the "Additional Information Provided by the Inspector" section; and

(II) each section provided for comments for each inspected item;

(ii) attach additional pages of comments; or

(iii) both;

(M) include a service agreement/inspection contract or contractual terms between the inspector and a client with the standard form under the "Additional Information Provided by the Inspector" section or as an attachment to the standard form;

(N) 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;

(O) attach additional reporting information produced by computer software so long as the standard report form is provided before that information; and

(P) Remove the Commission's logo or substitute the inspector's logo in place of the Commission's logo.

(4) The inspector shall renumber the pages of the standard 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. If multiple boxes are checked, the inspector must also include an explanation as to the reason for checking multiple boxes in the applicable section 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;

(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 license holder and reported on 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; or

(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 license holder and reported on a 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;]~~

~~[(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.]~~

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 8, 2022.

TRD-202204509

Abby Lee

Deputy General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: December 25, 2022

For further information, please call: (512) 936-3057

CHAPTER 537. PROFESSIONAL AGREEMENTS AND STANDARD CONTRACTS

22 TAC §537.1, §537.11

The Texas Real Estate Commission (TREC) proposes new rule 22 TAC, §537.1, Definitions, and amendments to §537.11, Use of Standard Contract Forms, in Chapter 537, Professional Agreements and Standard Contracts.

The proposed new rule adds a definitions section for ease of reading and for consistency with other Commission rule chapters. This includes a definition for the new term "informational items," which is intended to better describe the type of information that a license holder can add to a contract form.

The proposed amendments to §537.11 reorganize and consolidate the rule for clarity, and simplify the language regarding when a license holder is required to use a Commission-approved contract form and what is considered the unauthorized practice of law. Specifically, the proposed changes in subsection (a) align the rule language more closely with the applicable statutory language and simplify the list of exceptions related to contract form use by license holders. Importantly, the exception found in subsection (a)(4) is amended to eliminate the ability of license holders to use contract forms prepared by an attorney for a brokerage when no Commission-approved contract form for mandatory use exists.

Subsections (b) - (d) provide further guidance to license holders and members of the public on what the Commission considers to be the unauthorized practice of law. Of note, subsection (d)(2) provides that it is not the practice of law to add language to or strike language from a contract form, if specifically instructed in writing by a principal, as long as any change is made conspicuous, including underlining additions, striking through deletions, or employing some other method which clearly indicates the change being made.

Finally, the proposed changes to subsection (h) update the language regarding reproduction of Commission-approved contract forms to better account for changes in technology.

The Commission's Unauthorized Practice of Law Working Group recommends the proposed amendments.

Abby Lee, Deputy 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 adverse economic effect anticipated for small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact Statement or Regulatory Flexibility Analysis is required.

Ms. Lee also has determined that for each year of the first five years the sections as proposed are in effect, the public benefits anticipated as a result of adopting the sections as proposed will be improved clarity and greater transparency for members of the public and license holders.

Except as noted below, for each year of the first five years the proposed amendments and new rule 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.

The proposed changes to subsection (a)(4) of §537.11 limit an existing regulation in two ways: (i) by reducing the requirements for a contract form when there is no Commission-approved contract form and a license holder uses a form prepared by a trade association; and (ii) by removing the ability of license holders to use brokerage-prepared forms under this exception.

Comments on the proposal may be submitted through the online comment submission form at https://www.trec.texas.gov/rules-and-laws/comment-on-proposed-rules, to Abby Lee, Deputy 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 rule 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 statute affected by these amendments and new rules is Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the amendments and new rules.

§537.1.Definitions.

The following terms and phrases, when used in this chapter, have the following meanings:

(1) Commission--The Texas Real Estate Commission.

(2) Contract forms--Contracts and related addenda, including notices, amendments, and other documents, used in the sale, exchange, option, or lease of any interest in real property.

(3) Informational item--A statement that completes a blank in a contract form, discloses factual information, or provides instructions.

(4) License holder--A real estate broker or sales agent licensed under Chapter 1101, Texas Occupations Code.

(5) Mandatory use--Unless an exception applies under subsection (a) of section 537.11 (relating to Use of Standard Contract Forms; Unauthorized Practice of Law), use of the contract form is required by a license holder.

(6) Voluntary use--A license holder may, but is not required to, use the contract form.

§537.11.Use of Standard Contract Forms; Unauthorized Practice of Law.

(a) When negotiating contracts binding the sale, exchange, option, or lease [~~or rental~~] of any interest in real property, a [~~real estate~~] license holder shall use only those contract forms approved for mandatory use by the [~~Texas Real Estate~~] Commission [~~(the Commission)~~] for that type of transaction with the following exceptions:

(1) transactions in which the license holder is functioning solely as a principal, not as an agent;

(2) transactions in which an agency of the United States government requires a different form to be used;

(3) transactions for which a contract form [~~, or addendum to a contract form,~~] has been prepared by the [a] property owner or prepared by an attorney [~~a lawyer~~] and required by a property owner; or

(4) transactions for which no [~~mandatory~~] contract form [~~or addendum~~] has been approved for mandatory use by the Commission, and the license holder uses a form:

(A) prepared by [~~a lawyer licensed by this state, or~~] a trade association in consultation with an attorney [~~one or more lawyers~~] licensed by this state [~~, for the particular type of transactions involved~~] that contains:

(i) the name of the [~~lawyer or~~] trade association who prepared the form;

~~[(ii) the name of the broker or trade association for whom the form was prepared;]~~

(ii) [~~(iii)~~] a statement indicating the type of transaction for which the [~~lawyer or~~] trade association has approved the use of the form; and

~~[(iv) any restrictions on the use of the form; and]~~

(iii) [~~(v)~~] if applicable, an explanation of how the form [~~it is an addendum that~~] changes the rights, obligations, or remedies of a party under a contract [~~or addendum~~] form approved for mandatory use by the Commission and [~~for mandatory use, the form must also include:~~]

~~[(I) a statement about how the addendum changes the rights, obligations or remedies of a party, with a reference to the relevant paragraph number in the mandatory use form;]~~

~~[(II) a statement that the form is not a mandatory Texas Real Estate Commission form; and]~~

[~~(III)~~] a statement that [~~Commission rules prohibit real estate~~] license holders may not practice law or give [~~from giving~~] legal advice; or

(B) prepared by the Texas Real Estate Broker-Lawyer Committee [~~(the committee)~~] and approved by the Commission for voluntary use by license holders.

(b) A license holder may not:

(1) practice law;

(2) directly or indirectly offer, give or attempt to give legal advice;

(3) give advice or opinions as to the legal effect of any contract forms [~~contracts~~] or other such instruments which may affect the title to real estate;

(4) give opinions concerning the status or validity of title to real estate;

(5) draft or recommend language to be included in a contract form defining or affecting the rights, obligations, or remedies of the principals of a real estate transaction, including escalation, appraisal, or [~~other~~] contingency clauses;

(6) add informational items [~~factual statements or business details~~] to a form approved by the Commission if the Commission has approved a form [~~or addendum~~] for mandatory use for that purpose;

(7) attempt to prevent or in any manner whatsoever discourage any principal to a real estate transaction from employing an attorney [~~a lawyer~~]; or

(8) obtain legal advice from an attorney [~~employ or pay for the services of a lawyer~~], directly or indirectly, for [~~to represent~~] a principal in [to] a real estate transaction in which the license holder is acting as an agent.

(1) limit a license holder's fiduciary obligation to disclose to the license holder's principals all pertinent facts that are within the knowledge of the license holder, including such facts which might affect the status of or title to real estate;

(2) prevent the license holder from explaining to the license holder's principals the meaning of informational items or choices in a contract form, as long as the license holder does not practice law or give legal advice;

(3) limit a license holder from employing and paying for the services of an attorney to represent only the license holder in a real estate transaction; or

(4) limit a license holder from reimbursing a principal for attorney's fees incurred.

(d) It is not the practice of law for a license holder to:

(1) add informational items to [~~fill in the blanks in~~] a contract form authorized for use by this section; or[.]

(2) if specifically instructed in writing by a principal, add language to or strike language from a contract form, as long as any change is made conspicuous, including underlining additions, striking through deletions, or employing some other method which clearly indicates the change being made. [~~A license holder shall only add factual statements and business details or shall strike text as directed in writing by the principals.~~]

[(e) This section does not prevent the license holder from explaining to the principals the meaning of the alternative choices, factual statements, and business details contained in an instrument so long as the license holder does not offer or give legal advice.]

(e) [~~(f)~~] When a transaction involves unusual matters that should be reviewed by an attorney [~~a lawyer~~] before an instrument is executed, or if the instrument must be acknowledged and filed of record, the license holder shall advise the license holder's principals to [~~that each should~~] consult an attorney [~~a lawyer of the principal's choice~~] before executing the instrument.

~~[(g) A license holder may employ and pay for the services of a lawyer to represent only the license holder in a real estate transaction.]~~

(f) [~~(h)~~] A license holder shall advise the license holder's principals that the instrument they are about to execute is binding on them.

(g) Contract forms approved by the Commission are published by and available from the Commission at www.trec.texas.gov.

~~[(i) Forms approved by the Commission may be reproduced only from the following sources:]~~

~~[(1) electronically reproduced from the files available on the Commission's website;]~~

~~[(2) printed copies made from copies obtained from the Commission;]~~

~~[(3) legible photocopies made from such copies; or]~~

~~[(4) computer-driven printers following these guidelines:]~~

[(A) The computer file or program containing the form text must not allow the end user direct access to the text of the form and may only permit the user to insert language in blanks in the forms. Blanks may be scalable to accommodate the inserted language. The Commission may approve the use of a computer file or program that permits a principal of a license holder to strike through language of the form text. The program must be:]

~~[(i) limited to use only by a principal of a transaction; and]~~

~~[(ii) in a format and authenticated in manner acceptable to the Commission.]~~

~~[(B) Typefaces or fonts must appear to be identical to those used by the Commission in printed copies of the particular form.]~~

~~[(C) The text and order of the text must be identical to that used by the Commission in printed copies of the particular form.]~~

[(D) The name and address of the person or firm responsible for developing the software program must be legibly printed below the border at the bottom of each page in no less than six point type and in no larger than 10 point type.]

(h) [~~(j)~~] Contract forms [~~Forms~~] approved [~~or promulgated~~] by the Commission may be reproduced, including through use of a software application, provided that the text and format of the form, including the sizing, spacing, and pagination, is identical to the Commission's published version, except that [~~must be reproduced on the same size of paper used by the Commission with the following changes or additions only~~]:

(1) the [~~The~~] business name or logo of a broker, trade association, or other organization [~~or printer~~] may appear [~~at the top of a form~~] outside the form's border; and

(2) a form may be scaled to accommodate viewing on smaller screens, including mobile devices, as long as the final executed copy of the form otherwise complies with this subsection [~~The broker's name may be inserted in any blank provided for that purpose~~].

~~[(k) Standard Contract Forms adopted by the Commission are published by and available from the Commission at P.O. Box 12188, Austin, Texas 78711-2188 or www.trec.texas.gov.]~~

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 8, 2022.

TRD-202204508

Abby Lee

Deputy General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: December 25, 2022

For further information, please call: (512) 936-3057