TITLE PART 4. OFFICE OF THE SECRETARY OF STATE · PART 4. OFFICE OF THE SECRETARY OF STATE. CHAPTER 81. ... The new rule is adopted under the Texas Election Code, ... an entity can

TITLE 1. ADMINISTRATION PART 4. OFFICE OF THE SECRETARY OF STATE CHAPTER 81. ELECTIONS SUBCHAPTER A. VOTER REGISTRATION 1 TAC 81.6 The Office of the Secretary of State (hereinafter referred to as "Office") adopts new 1 TAC 81.6, to provide matching criteria to be used for determining whether registered voters are or may be deceased or have or may have a duplicate registration in the statewide voter registration database. Section 81.6 is added to accommodate HB 3593 (83rd Regular Session) (2013) and HB 4034 (85th Regular Session) (2017), relating to which informa-tion combinations identified as common to a voter and to an in-dividual who is deceased or to another voter registration record, constitute a weak match or a strong match. The Office adopts 81.6 without changes to the proposed text as published in the July 21, 2017, issue of the Texas Register (42 TexReg 3603).

No public comments were received regarding adoption of the new rule.

STATUTORY AUTHORITY

The new rule is adopted under the Texas Election Code, 31.003, which provides the Office of the Texas Secretary of State with the authority to obtain and maintain uniformity in the application, operation, and interpretation of the Texas Election Code and of the election laws outside the Texas Election Code. It also allows the Office of the Texas Secretary of State in performing such duties to prepare detailed and comprehensive written directives and instructions based on such laws. The rule is also proposed under Texas Election Code 18.068 and 18.0681, which provide the Office of the Texas Secretary of State with rule-making authority to determine information combinations constituting a weak match or a strong match for purposes of deceased and duplicate matching in order to: (1) produce the least possible impact on Texas voters; and (2) fulfill its responsibility to manage the voter rolls.

Cross-reference to statute: No other codes or sections are af-fected by the amendments.

The agency certifies that legal counsel has reviewed the adop-tion and found it to be a valid exercise of the agency's legal au-thority.

Filed with the Office of the Secretary of State on September 8,

2017. TRD-201703565

Lindsey Aston General Counsel Office of the Secretary of State Effective date: September 28, 2017 Proposal publication date: July 21, 2017 For further information, please call: (512) 463-5650

SUBCHAPTER C. VOTING SYSTEMS 1 TAC 81.52 The Office of the Secretary of State (hereinafter referred to as "Office") adopts amendments to 1 TAC 81.52, which relate to the requirement of a real-time audit log on a precinct ballot counter, and not a continuous audit log printer to be attached to the precinct ballot counter, during the early voting by personal appearance period. They also concern requirements relating to securing precinct ballot counters from tampering. The con-tinuous audit log printer requirement is no longer necessary as federal voting system guidelines have been revised to provide additional content and security requirements for internal audit logs. Currently, all precinct ballot counters certified in Texas meet these federal standards.

The Office adopts 81.52 with a certain non-substantive change to the proposed text as published in the July 28, 2017, issue of the Texas Register (42 TexReg 3714). The change from the proposal is a non-substantive grammatical change, to remove the superfluous phrase "prom pack" in 81.52 of the proposed amendments.

Only one entity submitted public comments regarding adoption of the amendments to 81.52. Specifically, Hart Intercivic, Inc. ("Hart") suggested that the following language be deleted from the proposed amendments to 81.52(h)(5): "The audit log must also be inspected to determine that there has been no unautho-rized access to the precinct counter", and also suggested that the following language be deleted from the proposed amendments to 81.52(h)(6): "and the log appears in order." Hart noted that it read this language to be "based on a printed audit log being present at that point in time", and said this was "moot because the seal is verified as being in place." The Office declines to adopt these changes because if, for example, an entity has tabulation software, an entity can download the log and review it before counting on the precinct ballot counter. In addition, the attached printer that prints tally tapes to certain precinct ballot counters is also capable of printing audit logs. Finally, 81.52(h)(12) pro-vides the Office with the authority to approve an alternate proce-dure, if necessary.

The remainder of Hart's comments were general comments in support of the rule as proposed.

ADOPTED RULES September 22, 2017 42 TexReg 4985

As to the non-substantive grammatical change, in its review of the publication, the Office noticed that a phrase it had intended to remove from the rule as part of the amendments, "prom pack", was not removed in the proposed amendment, but "electronic media" was added in the proposed amendment, in 81.52(h)(6). The Office intended to delete "prom pack" and replace it with "electronic media", to reflect the current technology. "[E]lectronic media prom pack" is a nonsensical phrase, and, accordingly, "prom pack" is being removed in the final adopted amendments.

STATUTORY AUTHORITY

The amendments are adopted under 31.003 of the Texas Elec-tion Code, which provides the Office of the Secretary of State with the authority to obtain and maintain uniformity in the applica-tion, interpretation, and operation of provisions under the Texas Election Code and other election laws. The amendments are also adopted pursuant to 122.001 and 122.032 of the Texas Election Code, which provide the Office of the Secretary of State the authority to prescribe additional procedures related to certi-fication and operation of voting systems. The amendments are also adopted pursuant to 81.002 of the Texas Election Code, which applies provisions related to electronic voting systems to early voting.

Cross-reference to statute: No other codes or sections are af-fected by the amendments.

81.52. Precinct Ballot Counters. (a) Where an electronic voting system that does not entail the

counting of ballots at central locations established under the Texas Election Code, Chapter 127, Subchapter A, is to be used at an election, the election results shall be processed in accordance with this section.

(b) If the tabulating equipment is capable of separating dam-aged ballots, irregularly marked ballots, and write-in ballots for manual processing, the equipment may be arranged so that voters deposit their marked ballots directly into the tabulator. The tabulator must be pro-vided with a sealed container such that ballots deposited by voters are counted by the tabulator or separated for manual counting, as the case may be, and then placed by the device directly into the sealed container.

(c) In addition to the procedures provided herein and in 127.157 of the Texas Election Code (the "Code"), compliance with the following voting procedures is required for the proper processing of ballots to be tabulated by voting systems specifically designed as electronic precinct ballot counters ("precinct counters").

(1) The voter may deposit a ballot directly into a precinct counter. If the machine returns the ballot to the voter because the ballot is blank, mismarked, damaged, or otherwise spoiled, the voter may ei-ther attempt to correct the ballot, request another ballot once the spoiled ballot is returned to the election officer, or request the election official to override the rejection so that the precinct counter accepts the ballot, and outstacks the write-in, if necessary.

(2) The voter is not entitled to receive more than three bal-lots. The procedures for handling a spoiled ballot provided by 64.007 of the Code must be followed.

(3) The precinct counter must be set up to reject and return the ballot to the voter rather than outstack the ballot if it is blank, mis-marked, undervoted, or overvoted.

(4) If the precinct counter rejects the ballot for any reason and the voter has received the maximum number of ballots or does not wish to make further changes to the ballot, the election official must override the rejection so that the precinct counter accepts the ballot and outstacks the write-in, if necessary.

(5) While the polls are open or as soon as practicable after the polls close, the counted ballots shall be removed from the ballot box and examined for irregularly marked ballots for processing in ac-cordance with 127.157(b) - (e) of the Code.

(d) If the tabulating equipment is not capable of separating damaged, irregularly marked, and write-in ballots for manual count-ing, a container meeting the specifications of the Code for ballots boxes number one and number two must be provided for the deposit of bal-lots by voters after the ballots have been marked. At the direction of the presiding judge, the election officials shall unlock the ballot con-tainer and process the ballots in accordance with the provisions of the Texas Election Code, 127.034(b) and (c), and then pass the ballots to be counted electronically through the tabulator for counting.

(e) In either case, the damaged and irregularly marked ballots shall be counted manually or duplicated for automatic tabulation pur-suant to 127.126 of the Code. Write-in ballots shall be counted man-ually, and the results added to those for ballots counted by the tabu-lating equipment. The results entered on the returns shall reflect the totals obtained from the count of the ballots tabulated on the tabulating equipment and from the manual count of damaged, irregularly marked, and write-in ballots.

(f) In this section, "damaged ballot" means a ballot that is dam-aged such that it may not be accurately counted by the tabulating equip-ment.

(g) The returns, ballots, and other records of the election shall then be distributed in accordance with the provisions of Chapter 66 of the Code. Ballots must be returned to the appropriate authority in a container meeting the specifications of the Code for ballot box number three.

(h) If a precinct ballot counter is to be used during early voting by personal appearance, it must have a real-time audit log. In addition, the counter must be secured to prevent tampering by the following pro-cedure.

(1) Immediately prior to the opening of the polls on the first day of early voting by personal appearance, a zero tape shall be run. If the tape properly reads "0" for all candidates and propositions, voting may begin.

(2) At the close of each day's voting, the precinct counter's doors must be locked and sealed with a numbered paper seal. The precinct counter must be unplugged and secured for the evening.

(3) Prior to voting on each day of the period, the precinct counter must be plugged back in and a tape run to indicate that the counter has not been disturbed since the previous day's voting and that voting may continue.

(4) At the conclusion of early voting by personal appear-ance, the precinct counter shall be locked, sealed, and secured by the Early Voting Clerk until Election Day.

(5) At the proper time designated for tabulation, the paper seal must be inspected to determine that it is intact. The audit log must also be inspected to determine that there has been no unauthorized ac-cess to the precinct counter.

(6) If the seal is intact and the log appears in order, the seal should be broken and the ballots removed to a separate container. The polls are closed on the counter and a "totals" printout is printed. The electronic media should be removed and transferred to the accumulator.

(7) If the seal is not intact, the early voting results may not be used and the early voting ballots must be re-counted using the stan-dard election day procedure.

42 TexReg 4986 September 22, 2017 Texas Register

(8) If the audit log indicates unauthorized activity, the early voting results may not be used and the early voting ballots must be re-counted using the standard election day procedure.

(9) The Early Voting Clerk shall place a notice on the bul-letin board of the hour and location of the seal breaks and running of totals.

(10) The audit log shall be preserved for 60 days after elec-tion day, or 22 months following election day in an election involving a federal office.

(11) Any deviation from this procedure must be approved in writing by the Secretary of State.



2017. TRD-201703564 Lindsey Aston General Counsel Office of the Secretary of State Effective date: September 28, 2017 Proposal publication date: July 28, 2017 For further information, please call: (512) 463-5650

TITLE 10. COMMUNITY DEVELOPMENT PART 1. TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS CHAPTER 10. UNIFORM MULTIFAMILY RULES SUBCHAPTER F. COMPLIANCE MONITORING 10 TAC 10.610, 10.613 The Texas Department of Housing and Community Affairs (the "Department") adopts amendments to 10 TAC Chapter 10, Uniform Multifamily Rules, Subchapter F, Compliance Monitor-ing, 10.610, concerning Written Policies and Procedures and 10.613 concerning Lease Requirements, with changes, as published in the May 12, 2017, issue of the Texas Register (42 TexReg 2470).

REASONED JUSTIFICATION: The majority of these amend-ments are required by the U.S. Department of Housing and Urban Development's implementing guidance regarding the requirements of the Violence Against Women Act ("VAWA"). Other amendments provide consistency between 10.610 and 1.204, relating to Reasonable Accommodations, provide further clarification of NHTF requirements, and address the requirement for a HOME Development sponsored by a CHDO or a Development that contains 811 units to provide a grievance policy. Also, the amendments clarify that certain properties that have been found "lead free" are not required to provide certain notices to residents.

SUMMARY OF COMMENTS AND STAFF RECOMMENDA-TIONS: Comment was received from (1) Patrick Barbolla, Fountainhead Management Inc. and (2) Linda Farrell, Hamilton Properties Corporation.

Ms. Farrell's submission suggested no changes to the rule.

COMMENT SUMMARY: 10.610(b)(1)(D)(i)

This section of the rule lists statements that an owner must in-clude in their tenant selection criteria. One of the statements is that the Development will comply with state and federal fair housing and antidiscrimination laws. The rule goes on to say "Chapter 1, Subchapter B of this title provides more detail about reasonable accommodations." The commenter notes that this sentence would not make sense in a Development's tenant se-lection criteria.

DEPARTMENT RESPONSE: Staff agrees and has deleted the sentence from the rule.

COMMENT SUMMARY: 10.610(c)

Commenter 1 notes that the Department's rule prohibits a De-velopment from requiring a household to make a reasonable ac-commodation request in writing despite a Joint Statement of the Department of Housing and Urban Development and the Depart-ment of Justice that notes it is usually helpful for both the resident and the housing provider if the request is made in writing. Com-menter suggested the following revision to the rule:

(2) the policy must not (A) require a household to make a rea-sonable accommodation request in writing; provided, however, that the housing provider may state that it is helpful to both the resident and the housing provider if the request is made in writ-ing to help prevent misunderstandings regarding what is being requested, or whether the request was made.

DEPARTMENT RESPONSE: Staff does not recommend making this change to the rule; there is nothing that would prohibit an owner from stating that it would be helpful to get the request in writing. The point of the rule is to explain the federal rule that an owner cannot require the request to be in writing.

COMMENT SUMMARY: 10.610(e) and (f)

Commenter 1 suggested that TDHCA properties layered with funding from USDA or HUD should be allowed to use the HUD or USDA VAWA forms instead of the forms created by the De-partment.

DEPARTMENT RESPONSE: Because the Department has re-sponsibilities under the Violence Against Women Act, the De-partment's information must be included on the forms. Therefore it is not permissible to allow TDHCA properties to only use the current version of the HUD or USDA forms. However, based on this comment, changes to the rules are shown below which will allow owners to create one form that satisfies the Department's requirements and the HUD/USDA requirements. The rule has been updated in two sections with the following language:

"To avoid providing applicants and residents with duplicate infor-mation, TDHCA administered Developments layered with other federal funds are permitted to amend the TDHCA VAWA forms to incorporate requirements of other funders. However, none of the information included in the TDHCA created form may be omitted."

COMMENT SUMMARY: 10.610(h)


Commenter 1 noted that the Department's rule requires the VAWA forms to be provided at the time of application and that 24 CFR 5.2005(a)(2) only requires the notification to be provided if the applicant is denied, approved or receives an eviction notice.

DEPARTMENT RESPONSE: Staff recommends no change to the rule as proposed. Staff believes that individuals affected by domestic violence may be discouraged from applying if they are unaware of their rights.

COMMENT SUMMARY: 10.613(h)

Commenter 1 noted that VAWA protects victims of domestic vio-lence, but not the perpetrator. To make that clear he suggested the following change:

"In accordance with the Violence Against Women Act, an inci-dent of actual or threatened domestic violence, dating violence, sexual assault, or stalking shall not be construed against the doc-umented victim of such actual or threatened domestic violence, dating violence, sexual assault, or stalking as a serious or re-peated violation of a lease or good cause for termination of ten-ancy."

DEPARTMENT RESPONSE: Staff agrees and has made the change.

COMMENT SUMMARY: 10.613(h) and (i)

Commenter 1 believed that there was an error in 10 TAC 10.613. This section of the rule states that the Department will determine if a person is eligible to break their lease without penalty. The commenter thought this was an error and that the owner of the housing would make that decision. The com-menter also noted that the word "executed" was missing from a sentence in this section.

DEPARTMENT RESPONSE: The rule as proposed was not er-roneous. 24 CFR 92.359(e) states: "This VAWA lease term/ad-dendum must also provide that the tenant may terminate the lease without penalty if the participating jurisdiction determines that the tenant has met the conditions for an emergency transfer under 24 CFR 5.2005(e)." No changes were made. The change regarding the missing word "executed" has been made.

STATUTORY AUTHORITY. These amendments are proposed pursuant to Texas Government Code, 2306.053, which autho-rizes the Department to adopt rules.

The proposed amendments affects no other code, article, or statute.

10.610. Written Policies and Procedures. (a) The purpose of this section is to outline policies and/or pro-

cedures that are required to have written documentation.

(1) Owners must inform applicants/tenants in writing, at the time of application or other action described in this section, that such policies/procedures are available, and that the Owner will provide copies upon request to applicants/tenants or their representatives.

(2) The Owner must have all policies and related documen-tation required by this section available in the leasing office or wherever applications are taken.

(3) All policies must have an effective date. Any changes require a new effective date.

(4) In general, policies cannot be applied retroactively. Tenants who already reside in the development or applicants on the wait list at the time new or revised tenant selection criteria are applied and who are otherwise in good standing under the lease or wait list,

must not receive notices of termination or non-renewal based solely on their failure to meet the new or revised tenant selection criteria or be passed over on the wait list. However, criteria related to program eligibility may be applied retroactively when a market development receives a new award of tax credits, federal or state funds and a household is not eligible under the new program requirements, or when prior criteria violate federal or state law.

(b) Tenant Selection Criteria. Owners must maintain written Tenant Selection Criteria. The criteria under which an applicant was screened must be included in the household's file.

(1) The criteria must include:

(A) Requirements that determine an applicant's basic eligibility for the property, including any preferences, restrictions, and any other tenancy requirements. The tenant selection criteria must specifically list:

(i) The income and rent limits;

(ii) When applicable, restrictions on student occu-pancy and any exceptions to those restrictions; and,

(iii) Fees and/or deposits required as part of the ap-plication process.

(B) Applicant screening criteria, including what is screened and what scores or findings would result in ineligibility.

(i) The screening criteria must avoid the use of vague terms such as "elderly," "bad credit," "negative rental history," "poor housekeeping," or "criminal history" unless terms are clearly defined within the criteria made available to applicants.

(ii) Applicants must be provided the names of any third party screening companies upon request.

(C) Occupancy Standards. If fewer than 2 persons (over the age of 6) per bedroom for each rental unit are required for reasons other than those directed by local building code or safety regulations, a written justification must be provided.

(D) The following statements:

(i) The Development will comply with state and fed-eral fair housing and antidiscrimination laws; including, but not limited to, consideration of reasonable accommodations requested to complete the application process.

(ii) Screening criteria will be applied in a manner consistent with all applicable laws, including the Texas and Federal Fair Housing Acts, the Federal Fair Credit Reporting Act, program guidelines, and the Department's rules.

(iii) Specific animal, breed, number, weight restric-tions, pet rules, and pet deposits will not apply to households having a qualified service/assistance animal(s).

(E) Notice to applicants and current residents about Vi-olence Against Women Reauthorization Act of 2013 ("VAWA") pro-tections.

(F) Specific age requirements if the Development is op-erating as Housing for Older Persons under the Housing for Older Per-sons Act of 1995 as amended (HOPA), or as required by federal funds to have an Elderly Preference, and in accordance with a LURA.

(2) The criteria must not:

(A) Include preferences for admission, unless such preference is:

(i) Allowed for under program rules; or,


(ii) The property receives Federal assistance and has received written approval from HUD, USDA, or VA for such prefer-ence.

(B) Exclude an individual or family from admission to the Development solely because the household participates in the HOME Tenant Based Rental Assistance Program, the housing choice voucher program under Section 8, United States Housing Act of 1937 (42 U.S.C. 1-437), or other federal, state, or local government rental assistance program. If an Owner adopts a minimum income standard for households participating in a voucher program, it is limited to the greater of a monthly income of 2.5 times the household's share of the total monthly rent amount or $2,500 annually; or,

(C) In accordance with VAWA, deny admission on the basis that the applicant has been a victim of domestic violence, dating violence, sexual assault, or stalking.

(3) If the Development is funded with HOME, Multifamily Direct Loan funds used as HOME match, NHTF, or NSP funds, in accordance with 24 CFR 93.356 and 24 CFR 92.359, the criteria may have a preference for persons who have experienced domestic violence, dating violence, sexual assault, or stalking.

(c) Reasonable Accommodations Policy. Owners must main-tain a written Reasonable Accommodations policy. The policy must be maintained at the Development. Owners are responsible for ensuring that their employees and contracted third party management companies are aware of and comply with the reasonable accommodation policy.

(1) The policy must provide:

(A) Information on how an applicant or current resident with a disability may request a reasonable accommodation; and,

(B) A timeframe (not to exceed 14 calendar days) in which the Owner will respond to a request.

(2) The policy must not:

(A) Require a household to make a reasonable accom-modation request in writing;

(B) Require a household to provide specific medical or disability information other than the disability verification that may be requested to verify eligibility for reasonable accommodation or special needs set aside program;

(C) Exclude a household with person(s) with disabili-ties from admission to the Development because an accessible unit is not currently available; or,

(D) Require a household to rent a unit that has already been made accessible.

(d) Wait List Policy. Owners must maintain a written wait list policy, regardless of current unit availability. The policy must be main-tained at the Development.

(1) The policy must include procedures the Development uses in:

(A) Opening, closing, and selecting applicants from the wait list;

(B) How preferences are applied; and,

(C) Procedures for prioritizing applicants needing ac-cessible units in accordance with 24 CFR 8.27 and Chapter 1, Sub-chapter B of this title.

(2) Developments with additional rent and occupancy re-strictions must maintain a waiting list for their lower rent restricted

units. Unless otherwise approved at application, underwriting and cost certification, all unit sizes must be available at the lower rent limits. The wait list policy for Developments with lower rent restricted units must address how the waiting list for their lower rent restricted units will be managed. The policy must not give a preference to prospective applicants over existing households. However, a Development may, but is not required to, prioritize existing households over prospective applicants.

(e) Denied Application Policies. Owners must maintain a written policy regarding procedures for denying applications.

(1) The policy must address the manner by which rejec-tions of applications will be handled, including timeframes and appeal procedures, if any.

(2) Within seven (7) days after the determination is made to deny an application, the owner must provide any rejected or ineligible applicant that completed the application process a written notification of the grounds for rejection. The written notification must include:

(A) The specific reason for the denial and reference the specific leasing criteria upon which the denial is based;

(B) Contact information for any third parties that pro-vided the information on which the rejection was based and information on the appeals process, if one is used by the Development. A grievance procedure is required for HOME Developments that are owned by Community Housing Development Organizations, and Developments that lease units under the Department's Section 811-PRA program; and

(C) The TDHCA form based on HUD form 5380 "No-tice of Occupancy Rights under the Violence Against Women Act" and the HUD form 5382 "Certification of Domestic Violence, Dating Vio-lence, Sexual Assault, or Stalking and Alternate Documentation."

(3) The Development must keep a log of all denied appli-cants that completed the application process to include:

(A) Basic household demographic and rental assistance information, if requested during any part of the application process;

(B) The specific reason for which an applicant was de-nied, the date the decision was made; and,

(C) The date the denial notice was mailed or hand-de-livered to the applicant.

(4) A file of all rejected applications must be maintained the length of time specified in the applicable program's recordkeeping requirements and include:

(A) A copy of the written notice of denial; and,

(B) The Tenant Selection Criteria policy under which an applicant was screened.

(f) Non-renewal and/or Termination Notices. Owners must maintain a written policy regarding procedures for providing house-holds non-renewal and termination notices.

(1) The owner must provide in any non-renewal or termi-nation notice, a specific reason for the termination or non-renewal.

(2) The notification must:

(A) Be delivered as required under applicable program rules;

(B) Include the TDHCA form based on HUD form 5380 "Notice of Occupancy Rights under the Violence Against Women Act" and the HUD form 5382 "Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking and Alternate Documentation."


To avoid providing applicants and residents with duplicate informa-tion, TDHCA administered Developments layered with other federal funds are permitted to amend the TDHCA VAWA forms to incorporate requirements of other funders. However, none of the information in-cluded in the TDHCA created form may be omitted.

(C) State how a person with a disability may request a reasonable accommodation in relation to such notice; and,

(D) Include information on the appeals process if one is used by the property.

(g) Unit Transfer Policies. Owners must maintain a written policy regarding procedures for households to request a unit transfer. The policy must address the following:

(1) How security deposits will be handled for both the cur-rent unit and the new unit;

(2) How transfers related to a reasonable accommodation will be addressed; and,

(3) For HTC Developments, how transfers will be handled with regard to the multiple building project election on IRS Form(s) 8609 line 8(b) and accompanying statements in accordance with 10.616 of this subchapter, concerning Household Unit Transfer Requirements for All Programs.

(h) At the time of application Owners must provide each adult in the household the TDHCA form based on HUD form 5380 "Notice of Occupancy Rights under the Violence Against Women Act" and the HUD form 5382 "Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking and Alternate Documentation." To avoid providing applicants and residents with duplicate information, TDHCA administered Developments layered with other federal funds are per-mitted to amend the TDHCA VAWA forms to incorporate requirements of other funders. However, none of the information included in the TD-HCA created form may be omitted.

(i) No later than June 14, 2017, HOME, NHTF, NSP, 811 PRA, and state HOME match, Development Owners with contracts dated on or after December 16, 2016, must individualize for their Development and then adopt the TDHCA form based on HUD Form 5381 "Model Emergency Transfer Plan for Victims of Domestic Violence, Dating Violence, Sexual Assault or Stalking" or request from the Department to use another Federal program's Emergency Transfer Plan.

10.613. Lease Requirements.

(a) Eviction and/or termination of a lease. For HTC Develop-ments, IRS Revenue Ruling 2004-82 prohibits the eviction or termina-tion of tenancy of low-income households for other than good cause throughout the entire Affordability Period, and for three (3) years after termination of an extended low-income housing commitment. Owners executing or renewing leases after November 1, 2007, shall specifically state in the lease or in an addendum attached to the lease that evictions or terminations of tenancy for other than good cause are prohibited.

(b) For HOME, state HOME match, and NSP Developments, the HOME Final Rule (and as adopted by Texas NSP) prohibits Own-ers from evicting low-income residents or refusing to renew a lease except for serious or repeated violations of the terms and conditions of the lease, for violations of applicable federal, state or local law, for completion of the tenancy period for transitional housing, or for other good cause. To terminate tenancy, the Owner must serve written notice to the tenant specifying the grounds for the action at least thirty (30) days before the termination of tenancy. Owners executing or renew-ing leases after November 1, 2007, shall specifically state in the lease or in an addendum attached to the lease that evictions or non-renewal of leases for other than good cause are prohibited (24 CFR 92.253).

Owners must also comply with all other lease requirements and prohi-bitions stated in 24 CFR 92.253.

(c) For NHTF, the NHTF Interim Rule prohibits Owners from evicting low-income residents or refusing to renew a lease except for serious or repeated violations of the terms and conditions of the lease, for violations of applicable federal, state or local law, or for other good cause. Owners must also comply with all other lease requirements and prohibitions stated in 24 CFR 93.303.

(d) Evictions and terminations of tenancy for other than good cause are prohibited. In accordance with the Violence Against Women Act, an incident of actual or threatened domestic violence, dating vio-lence, sexual assault, or stalking against the documented victim of such actual or threatened domestic violence, dating violence, sexual assault, or stalking shall not be construed as a serious or repeated violation of a lease or good cause for termination of tenancy. If a challenge to an eviction or termination of tenancy is related to a reasonable accommo-dation as defined by 1.204 of this title (relating to Reasonable Ac-commodations), a violation of the provision found in subsection (i) of this section, or for Developments financed by Direct Loans where ac-tions trigger Title 104(d) of the Housing and Community Development Act of 1974 or the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, the Department upon the request of either party will determine if an Owner is in compliance with the refer-enced requirements using the methods outlined in 1.2 of this Title (re-garding Department Compliant System), or as required by federal law. Otherwise, the Department does not determine if an Owner has good cause or if a resident has violated the lease terms for other reasons. Challenges for evictions or terminations of tenancy for other reasons must be made by a court of competent jurisdiction or an agreement of the parties in arbitration, and the Department will rely on that determi-nation.

(e) HTC and Bond Developments must use a lease or lease addendum that requires households to report changes in student status.

(f) Owners of HTC Developments are prohibited from lock-ing out or threatening to lock out any Development resident, except by judicial process, unless the exclusion is necessary for the purpose of performing repairs or construction work, or in cases of emergency. Owners are further prohibited from seizing or threatening to seize the personal property of a resident except by judicial process unless the resident has abandoned the premises. These prohibitions must be in-cluded in the lease or lease addendum.

(g) For HOME, TCAP, state HOME match, NHTF, and NSP Developments, properties that were initially built for occupancy prior to 1978 must include in their lease or lease addendum a Lead Warn-ing Statement. To demonstrate compliance, the Department will mon-itor that, all households at HOME, TCAP, state HOME match, NHTF, and NSP Developments have signed the Disclosure of Information on Lead-Based Paint and/or Lead-Based Paint Hazards. (24 CFR 92.355, 24 CFR 93.361 and 570.487(c)). The addendum and disclosure are not required if all lead has been certified to have been cleared from the Development in accordance with 24 CFR 35.130, and the Owner has the required certification in its on-site records.

(h) All Owners may bifurcate a lease to terminate the tenancy of an individual who is a tenant or lawful occupant and engages in criminal activity directly relating to domestic violence, dating violence, sexual assault, or stalking against another lawful occupant living in the unit or other affiliated individual as defined in the VAWA 2013.

(i) All NHTF, state HOME match, NSP, 811 PRA, and HOME Developments for which the contract is executed on or after December 16, 2016, must use the Department created VAWA lease addendum which provides the ability for the tenant to terminate the lease without


penalty if the Department determines that the tenant qualifies for an emergency transfer under 24 CFR 5.2005(e).

(j) Leasing of HOME and state HOME match units by orga-nizations that, in turn, rent those units to individuals is not permissible for Developments with contracts dated on or after August 23, 2013.

(k) Housing Tax Credit units leased to an organization through a supportive housing program where the owner receives a rental pay-ment for the unit regardless of physical occupancy will be found out of compliance if the unit remains vacant for over 60 days. The unit will be found out of compliance under the finding "Violation of the Unit Vacancy Rule."

(l) It is a Development Owner's responsibility at all times to know what it has agreed to provide by way of common amenities, unit amenities, and services.

(m) A Development Owner shall post in a common area of the leasing office a laminated copy and provide each household, dur-ing the application process and upon a subsequent change to the items described in paragraph (2) of this subsection, the brochure made avail-able by the Department, A Tenant Rights and Resources Guide, which includes:

(1) Information about Fair Housing and tenant choice;

(2) Information regarding common amenities, unit ameni-ties, and services; and,

(3) A certification that a representative of the household must sign prior to, but no more than 120 days prior to, the initial lease execution acknowledging receipt of this brochure.

(4) In the event this brochure is not provided timely or the household does not certify to receipt of the brochure, correction will be achieved by providing the household with the brochure and receiving a signed certification that it was received.



2017. TRD-201703589 Timothy K. Irvine Executive Director Texas Department of Housing and Community Affairs Effective date: October 1, 2017 Proposal publication date: May 12, 2017 For further information, please call: (512) 475-3140

TITLE 16. ECONOMIC REGULATION PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION CHAPTER 117. MASSAGE THERAPY The Texas Commission of Licensing and Regulation (Commis-sion) adopts new rules at 16 Texas Administrative Code (TAC), Chapter 117, Subchapter A, 117.1 and 117.2; Subchapter C, 117.20 - 117.24; Subchapter D, 117.30 - 117.34; Subchap-ter E, 117.40 and 117.41; Subchapter F, 117.50 - 117.54, 117.56, 117.58 - 117.68; Subchapter G, 117.80 - 117.85;

Subchapter H, 117.90 - 117.93; Subchapter J, 117.110 - 117.112, regarding the Massage Therapy program, without changes to the proposed text as published in the April 21, 2017, issue of the Texas Register (42 TexReg 2094). The rules will not be republished.

The Commission also adopts new rule at 16 TAC, Chapter 117, Subchapter F, 117.55 and 117.57; and Subchapter I, 117.100, regarding the Massage Therapy program, with changes to the proposed text as published in the April 21, 2017, issue of the Texas Register (42 TexReg 2094). The rules will be republished.

The Texas Legislature enacted Senate Bill 202 (S.B. 202), 84th Legislature, Regular Session (2015), which, in part, transferred 13 occupational licensing programs in two phases from the De-partment of State Health Services (DSHS) to the Commission and the Texas Department of Licensing and Regulation (Depart-ment). The Commission and Department completed the Phase 1 transition of seven programs on October 3, 2016.

Under Phase 2, the following six programs are being transferred from DSHS to the Commission and the Department: (1) Laser Hair Removal, Texas Health and Safety Code, Chapter 401, 401.501 - 401.522; (2) Massage Therapy, Texas Occupations Code, Chapter 455; (3) Code Enforcement Officers, Texas Oc-cupations Code, Chapter 1952; (4) Sanitarians, Texas Occupa-tions Code, Chapter 1953; (5) Mold Assessors and Remedia-tors, Texas Occupations Code, Chapter 1958; and (6) Offender Education Programs, Alcoholic Beverage Code, Chapter 106, 106.115 (Alcohol Education Program for Minors); Transporta-tion Code, Chapter 521, 521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, 13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, 13(j)) (DWI Intervention Program). The statutory amendments transferring regulation of these six Phase 2 programs from DSHS to the Com-mission and the Department will take effect on September 1, 2017.

The new rules were adopted to enable the Commission and the Department to regulate the six Phase 2 programs listed above. The adopted new rules provide for the Department to perform the various functions, including licensing, compliance, and enforce-ment, necessary to regulate these transferred programs. The effective date of the adopted rules is November 1, 2017. The effective date will coincide with the completion of the transfer of the programs to the Commission and the Department.

The adopted new Subchapter A provides the General Provisions for the proposed new rules.

The adopted new 117.1 provides the statutory authority for the Commission and the Department to regulate the massage ther-apy program.

The adopted new 117.2 creates the definitions to be used in the massage therapy program.

The adopted new Subchapter C establishes licensed massage therapist requirements.

The adopted new 117.20 creates the general requirements and applications for the massage therapist license.

The adopted new 117.21 details the reciprocity requirements for the massage therapist license.


The adopted new 117.22 explains the examination required for the massage therapist license.

The adopted new 117.23 explains the issuance of a massage therapist license.

The adopted new 117.24 establishes the massage therapist term and renewal requirements.

The adopted new Subchapter D creates the continuing educa-tion requirements.

The adopted new 117.30 establishes the continuing education hours for massage therapist.

The adopted new 117.31 details the approved continuing edu-cation courses and providers for massage therapist.

The adopted new 117.32 explains activities that are unaccept-able for continuing education for massage therapists.

The adopted new 117.33 establishes the record and audit process for massage therapist continuing education.

The adopted new 117.34 explains the general requirements and applications for continuing education providers to be ap-proved by the Department.

The adopted new Subchapter E creates licensed massage ther-apy instructors.

The adopted new 117.40 details the general requirements and applications for massage therapy instructors.

The adopted new 117.41 establishes the massage therapy in-structor term and renewal requirements.

The adopted new Subchapter F provides for licensed massage schools.

The adopted new 117.50 details the general and application requirements for a massage school license.

The adopted new 117.51 creates massage school location re-quirements.

The adopted new 117.52 explains change of massage school ownership.

The adopted new 117.53 establishes massage school equip-ment and facility requirements.

The adopted new 117.54 establishes massage school sanita-tion requirements.

The adopted new 117.55 provides for massage school inspec-tions.

The adopted new 117.56 explains necessary documents and requirements to establish massage school financial stability.

The adopted new 117.57 establishes massage school license renewal requirements.

The adopted new 117.58 provides for massage school admin-istrative personnel.

The adopted new 117.59 creates the massage school curricu-lum outline and internship.

The adopted new 117.60 details massage school advanced course work.

The adopted new 117.61 establishes massage school admis-sion requirements.

The adopted new 117.62 explains massage school enrollment procedures.

The adopted new 117.63 establishes massage school tuition and fees.

The adopted new 117.64 provides for massage school tran-scripts and records.

The adopted new 117.65 creates a massage school conduct and grievance policy.

The adopted new 117.66 establishes massage school cancel-lation, refund and school closure policies.

The adopted new 117.67 details massage school minimum progress standards.

The adopted new 117.68 provides for a massage school atten-dance policy.

The adopted new Subchapter G creates licensed massage es-tablishments.

The adopted new 117.80 details the general requirements and applications for massage establishments.

The adopted new 117.81 establishes massage establishment renewal requirements.

The adopted new 117.82 explains general requirements for massage establishments.

The adopted new 117.83 details sanitation requirements for massage establishments.

The adopted new 117.84 provides exemptions to the require-ment for massage establishment licensure.

The adopted new 117.85 explains massage establishment change of ownership or location requirements.

The adopted new Subchapter H explains the responsibilities of licensees and code of ethics to be used in the massage therapy program.

The adopted new 117.90 creates general ethical requirements.

The adopted new 117.91 details the consultation document.

The adopted new 117.92 prohibits sexual misconduct.

The adopted new 117.93 explains advertising requirements.

The adopted new Subchapter I creates fees.

The adopted new 117.100 details applicable fees in the mas-sage therapy program.

The adopted new Subchapter J provides enforcement provi-sions.

The adopted new 117.110 requires massage therapy program licensees to cooperate with the Department regarding com-plaints.

The adopted new 117.111 allows for administrative penalties and sanctions.

The adopted new 117.112 provides the authority to enforce this chapter and Texas Occupations Code, Chapter 455.

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the April 21, 2017, issue of the Texas Regis-ter (42 TexReg 2094). The deadline for public comments was May 22, 2017. The Department held a public hearing during the


public comment period on May 12, 2017. During the 30-day pub-lic comment period the Department received comments from the American Massage Therapy Association Texas Chapter and one hundred thirty-four interested parties, including twelve who made comments during the public hearing. The public comments re-ceived are summarized by issue below.

Rule Related Comments

Comment--Five commenters noted that the proposed rule 117.57(b)(3) added an additional burden on massage school license renewals by now requiring audited financial statements similar to those required for initial massage school applicants.

Department Response--The purpose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services to the Texas Department of Licensing and Regulation. The department agrees that the proposed rule 117.57(b)(3) as published creates an additional burden for licensed massage therapy schools. The phrase "as prescribed under 117.56" has been removed as a result of these comments.

Comment--One hundred and nine commenters requested retain-ing proposed rule 117.22(b), specifically the phrase "broadly ac-cepted." The commenters stated that the deletion of this phrase would have long term and damaging effects on the entire indus-try in Texas and would negatively affect reciprocity.

Department Response--The purpose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services to the Texas Department of Licensing and Regulation. At this time, the proposed rules do not create any additional bur-dens or make any substantive changes for existing or prospec-tive licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--Twelve commenters stated that the proposed rule 117.22(b) uses the phase "broadly recognize" which they believe conflicts with current law. The commenters stated further that the Massage and Bodywork Licensing Exam does not reflect the state curriculum.

Department Response--Proposed rule 117.22(b) reflects ex-isting Department of State Health Services language that was adopted in 2009 (See current 25 Texas Administrative Code 140.313(a)). The Department has determined that the rule is consistent with the statute. The Massage and Bodywork Licensing Exam and the state curriculum have both been in place at the Department of State Health Services since 2009. The purpose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services to the Texas Department of Licensing and Regulation. At this time, the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--Four commenters made comments in regards to the definition of massage. Three commenters suggested the need to change the definition of "massage therapy" to distinguish the profession from unlicensed or illicit activity. One commenter en-couraged the department to carefully consider any changes to the definition of "massage therapy" and not infringe on many therapists working in the spa industry.

Department Response--The definition of "massage therapy" in proposed rule 117.2(16) uses language found in state law (See Occupations Code Chapter 455, 455.001(8), 455.001(11),

455.002, and 455.003). The Department lacks authority to revise the definition of a term that is defined by statute. The purpose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services to the Texas Department of Licensing and Regulation. At this time, the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter raised concern with the attendance policy under proposed rule 117.68(e)(2). The commenter opined that if a student is able to complete the 500 hour require-ment, regardless of absences, they should not be terminated after missing 15% of the clock hour program.

Department Response--The purpose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services to the Texas Department of Licensing and Regulation. At this time, the proposed rules do not create any additional bur-dens or make any substantive changes for existing or prospec-tive licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter believed that the gift card policy should be left up to the therapist or have a set expiration date.

Department Response--Proposed rules 117.90(e) requires a li-censee to honor an unexpired gift certificate or provide a full re-fund. The rule does not prohibit or require expiration dates on gift certificates nor does it require a licensee to honor or pro-vide a refund for an expired gift certificate. The Department did not make any changes to the proposed rules in response to this comment.

Comment--Two commenters would like to see a rule that re-quires draping of clients.

Department Response--The purpose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services to the Texas Department of Licensing and Regulation. At this time, the proposed rule for draping under proposed rules 117.91(a)(4) does not create any additional burdens or make any substantive changes for existing or prospective licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter stated that the fee of $300 every two years for massage establishments seems burdensome and ex-cessively high.

Department Response--The purpose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services to the Texas Department of Licensing and Regulation. Texas Occupations Code, Chapter 51, requires the Texas Com-mission of Licensing and Regulation to set fees in amounts rea-sonable and necessary to cover the costs of administering the program. The Department recently conducted a fee analysis for the Massage Therapy program. The Department found that the fees in the proposed rules are above the amounts that will be required for the Department to cover its costs. Therefore, the Department has reduced some of the fees associated with this program including the initial application fee from $300 to $200; and the renewal application fee from $300 to $200 for all other establishment applicants.

Enforcement Related Comments


Comment--Five commenters expressed concern over unli-censed activity, prohibited activity, and the need for enforcement action.

Department Response--The Department is responsible for ad-ministering and enforcing Occupations Code, Chapter 455, in-cluding taking appropriate action if a person has violated the law or rules. This comment does not address any current proposed rule. It has been referred to the appropriate division for review. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter requested the department to en-force licensing in malls.

Department Response--The Department is responsible for the administration and enforcement of Occupations Code, Chapter 455 in any setting in which services requiring licensure are pro-vided. This comment does not address any current proposed rule. It has been referred to the appropriate division for review. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter would like information relating to pending and resolved enforcement actions kept up to date.

Department Response--This comment does not address any current proposed rule. It has been referred to the appropriate division for review. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter stated that the rules concerning ad-vertising are clear and people are not in compliance with the rules.


Comment--One commenter asked for clarification of the term "deviate sexual intercourse."

Department Response--The proposed rule 117.92 states that this term "deviate sexual intercourse" has the meaning as de-scribed in Penal Code, Chapters 21, 22, and 43. The Depart-ment did not make any changes to the proposed rules in re-sponse to this comment.

Comment--One commenter would like to know if the Department is complaint-driven or if the department will conduct inspections.

Department Response--As described in proposed rule 117.110, any person may file a complaint with the department alleging that a license holder has violated the law or rules. As described in proposed rules 117.55 and 117.82(f), the department will be conducting regular inspections of massage therapy schools and massage therapy establishments. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter expressed concerns that proposed rule 117.111(c) could allow a person charged with certain crim-inal offenses to continue to practice until the person's criminal case is resolved. The commenter suggested that the Depart-ment should revoke the license of a person prior to the outcome of the criminal proceeding.

Department Response--The Department has no authority to re-voke a license except as described by law under Chapter 455 of the Occupations Code. The proposed rules reflect the statu-tory authority afforded to the department found in Occupations

Code, 455.251 (Ground for License Denial or Disciplinary Ac-tion). The Department did not make any changes to the pro-posed rules in response to this comment.

Comment--One commenter recounted two situations of possi-ble violations and described the criminal history criteria the com-menter uses for massage school admission.


Education & Exam Related Comments

Comment--One commenter asked the Department to continue using the Massage and Bodywork Licensing Examination.


Comment--One commenter would like support to be afforded to persons who do not speak English.


Comment--One commenter would like to know if there will be a per course fee for continuing education providers.

Department Response--All fees associated with the administra-tion of the Massage Therapy Program are indicated in proposed rule 117.100. At this time, the proposed rules do not create any additional burdens or make any substantive changes for exist-ing or prospective licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter asks what the process will be for submitting continuing education courses to the department for approval.

Department Response--Requirements for continuing education providers are covered in proposed rule 117.34. As is currently in place at the Department of State Health Services, the pro-posed rule requires approved continuing education providers to offer courses that are in compliance with the rules, but it does not require approval of individual courses. This comment is about process and does not address any current proposed rule. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter suggested using a mandatory re-porting system for continuing education providers instead of an audit system.

Department Response--The purpose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services to the Texas Department of Licensing and Regulation. At this time, the proposed rules do not create any additional bur-dens or make any substantive changes for existing or prospec-tive licensees. The existing Department of State Health Services rule utilizes an audit system for continuing education. The De-partment did not make any changes to the proposed rules in re-sponse to this comment.

Comment--Once commenter expressed concern that current continuing education providers are not being audited.


Department Response--Under proposed rule 117.34(f), the De-partment may audit approved continuing education providers to ensure compliance. This comment does not address any current proposed rule. It has been referred to the appropriate division for review. The Department did not make any changes to the pro-posed rules in response to this comment.

Comment--One commenter asked about the process for ap-proval and the cost for the 30-hour course on teaching adult learners under proposed rule 117.40.

Department Response--Proposed rule 117.40(a)(4) sets out the acceptable options for the 30-hour course on teaching adult learners. One option is a continuing education course. Requirements for continuing education providers are covered in rule 117.34. As is currently in place at the Department of State Health Services, the proposed rule requires approved continu-ing education providers to offer courses that are in compliance with the rules, but it does not require approval of individual courses. This comment is about process and does not address any current proposed rule. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter stated that the Department continu-ing to require those who teach massage to both obtain a Mas-sage Therapy Instructor License and become an Approved Con-tinuing Education Provider is economically burdensome for con-tinuing education providers.

Department Response--Not all approved continuing educa-tion providers choose to offer courses in massage therapy techniques. For those who do, the Department believes that meeting the experience and education requirements for massage therapy instructor licensure will ensure quality and appropriate instruction. The proposed rule at 117.31(b)(1) reflects the existing Department of State Health Services rule on this topic. The purpose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services to the Texas Department of Licensing and Regulation. At this time, the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter asked specifically about the types of courses that will be accepted for continuing education credit.

Department Response--Subchapter D of the proposed rules sets out requirements relating to continuing education, including ac-ceptable and unacceptable course content. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter would like to know how to renew their license because their school has closed and they no longer have a transcript.


Other Related Comments

Comment--One commenter asked when licenses will become effective.

Department Response--Licenses issued by the Department of State Health Services will remain valid until its expiration. When a licensee renews on or after November 1, 2017, the licensee

will receive a license from the Texas Department of Licensing and Regulation and the license will become effective upon the Department's approval of the application. This information will be updated daily on the Department's website. This comment does not address any current proposed rule. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter would like information provided by the Department to be provided faster and updated in real time.

Department Response--The Department strives to provide on-line licensure information and process applications in a timely manner. This comment does not address any current proposed rule. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter would like specific guidelines on use of hydrotherapy, table-showers, and Vichy showers.

Department Response--The purpose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services to the Texas Department of Licensing and Regulation. At this time, the proposed rules do not create any additional bur-dens or make any substantive changes for existing or prospec-tive licensees. This comment does not address any current pro-posed rule. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter would like the consultation docu-ment to be regarded and kept confidential in the same manner as physician records.

Department Response--Protected health information is confi-dential under both state and federal law. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter asked for points of contact with the Department.

Department Response--The Department's contact information is available on its website. This comment does not address any current proposed rule. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter clarified that, contrary to the impres-sion left by her previous comment, she did not change her cur-riculum, but instead added to it.

Department Response--This comment does not address any current proposed rule. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter asked for clarification of exemptions for massage therapy schools.

Department Response--Exemption from licensing are provided for in statute under Occupations Code, Chapter 455, 455.155. The Department did not make in changes to the proposed rules in response to this comment.

At the Commission meeting held on August 18, 2017, three com-menters made comments regarding the proposed rules. The comments are summarized below.

Comment--The first commenter expressed concern with the cur-rent definition of "massage therapy" as defined in Chapter 455 of the Occupations Code and would like to see it changed to be less ambiguous and link massage therapy with healthcare.


Department Response--The Department lacks authority to re-vise the definition of a term that is defined by statute. The pur-pose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services to the Texas Depart-ment of Licensing and Regulation. At this time, the proposed rules do not create any additional burdens or make any sub-stantive changes for existing or prospective licensees. The De-partment did not make any changes to the proposed rules in re-sponse to this comment.

Comment--The second commenter asked if the jurisprudence exam will still be required for massage therapists when the pro-gram is transferred to the Texas Department of Licensing and Regulation. Additionally, the commenter would like to see a re-duction in the level of specificity in the rules for schools and what they are required to teach and how they are to operate. The commenter asked how the Department will be interpreting pro-posed rule 117.51 relating to massage school locations. Fi-nally, the commenter would like to see a change to proposed rule 117.59(k) that prohibits compensation for massage ther-apy students who provide massage services.

Department Response--The proposed 117.22 requires a mas-sage therapist to pass a jurisprudence exam before being is-sued a license and this requirement will not change on Novem-ber 1, 2017. The purpose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services to the Texas Department of Licensing and Regulation. At this time, the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective li-censees. The Department intends to review the rules again once the program is officially transferred to ensure effective and effi-cient operation of the Massage Therapy Program. The Depart-ment did not make any changes to the proposed rules based on this comment.

Comment--The last commenter wanted to express his gratitude for the transparency, responsiveness and information provided by the Department.

Department Response--The Department appreciates this com-ment. The Department did not make any changes to the pro-posed rules based on this comment.

At its meeting held on August 18, 2017, the Commission adopted the proposed rules with changes as recommended by the De-partment.

During the rulemaking process the Department conducted a fee analysis on the Massage Therapy program. Section 51.202 of the Texas Occupations Code, requires the Commission to set fees in amounts reasonable and necessary to cover the costs of administering the programs under the Department's jurisdic-tion. Additionally, Article VIII, Section 2 of the General Appro-priations Act requires the Department's revenue cover the cost of the Department's appropriations and other direct and indirect costs. The Department found that the fees in the proposed rules are above the amounts that will be required for the Department to cover its costs. Therefore, the Department has reduced the fol-lowing fees for: massage therapists renewal application fee from $100 to $75; all other establishment applicants initial application fee from $300 to $200 and the renewal application fee from $300 to $200; massage schools offering the massage therapy educa-tional program initial application fee from $2,800 to $1,500, re-newal application fee from $2,000 to $1,000, change of instruc-tional address from main campus fee from $375 to $300, ap-plication fee for an additional massage school location separate

from the main campus from $750 to $500, and renewal fee for an additional massage school location separate from the main cam-pus from $750 to $500; and massage therapy instructors initial application fee from $200 to $100 and renewal application fee from $200 to $100. The decrease in this fee will not adversely affect the administration and enforcement of the program. The reduction in the renewal fee will result in approximately $483,775 of lost revenue to the state each year.

SUBCHAPTER A. GENERAL PROVISIONS 16 TAC 117.1, 117.2 The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adoption are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the adoption.



2017. TRD-201703578 Brian E. Francis Executive Director Texas Department of Licensing and Regulation Effective date: November 1, 2017 Proposal publication date: April 21, 2017 For further information, please call: (512) 463-8179

SUBCHAPTER C. LICENSED MASSAGE THERAPIST 16 TAC 117.20 - 117.24 The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.




2017. TRD-201703579


Brian E. Francis Executive Director Texas Department of Licensing and Regulation Effective date: November 1, 2017 Proposal publication date: April 21, 2017 For further information, please call: (512) 463-8179

SUBCHAPTER D. CONTINUING EDUCATION 16 TAC 117.30 - 117.34 The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.





SUBCHAPTER E. LICENSED MASSAGE THERAPY INSTRUCTORS 16 TAC 117.40, 117.41 The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.




2017. TRD-201703581


SUBCHAPTER F. LICENSED MASSAGE SCHOOLS 16 TAC 117.50 - 117.68 The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.


117.55. Massage School Inspections. (a) There will be at least one unannounced inspection at the

primary instructional location of each massage school and at each ad-ditional location every year.

(b) Other inspections may be performed, announced or unan-nounced, at the discretion of the department.

(c) If deficiencies are found, the massage school shall be noti-fied at the end of the inspection of the deficiencies in writing. If defi-ciencies are not serious or do not raise health and safety concerns, the department shall give the educational program thirty (30) days to cor-rect the deficiencies.

117.57. Massage School License Renewal. (a) The license of a massage school is valid for a two-year

period beginning on the date of issuance of the initial license.

(b) To renew a massage school license, the licensee must sub-mit:

(1) the renewal fee prescribed under 117.100;

(2) the completed renewal application on a department-ap-proved form;

(3) the complete annual financial statements for the most recently completed fiscal year, demonstrating the massage therapy ed-ucational program is financially stable and capable of fulfilling its com-mitments for instruction; and

(4) any other information deemed necessary by the depart-ment to determine compliance with the Act and this subchapter.

(c) At least thirty (30) days before the license expiration date, the department shall send a notice of the expiration date and the amount of the renewal fee due. The notice will be mailed to the address in the department's records. Each massage school must file a renewal form in a manner prescribed by the department.

(d) The department shall issue a renewal license to a massage school once all renewal requirements are met.

(e) A massage school which operates a massage therapy edu-cational program with an expired license may be subject to disciplinary action. Course hours taught during the time the license is expired will not apply toward the minimum 500-hour course of instruction. For the


purpose of establishing the date of late renewal, the postmark date shall be considered the date of mailing.




SUBCHAPTER G. LICENSED MASSAGE ESTABLISHMENTS 16 TAC 117.80 - 117.85 The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.





SUBCHAPTER H. RESPONSIBILITIES OF THE LICENSEE AND CODE OF ETHICS 16 TAC 117.90 - 117.93 The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.





SUBCHAPTER I. FEES 16 TAC 117.100 The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.


117.100. Fees. (a) All fees paid to the department are non-refundable.

(b) Fees related to massage therapists are as follows:

(1) initial application fee--$100;

(2) renewal application fee (for two-year license)--$75.

(c) Fees related to massage establishments are as follows:

(1) initial application fee:

(A) for each massage school primary instructional lo-cation or approved additional location--$100;

(B) for all other establishment applicants--$200;

(2) renewal application fee (for two-year license):

(A) for each massage school primary instructional lo-cation or approved additional location--$100;

(B) for all other establishment renewal appli-cants--$200.

(d) Fees related to massage schools offering the massage ther-apy educational program are as follows:

(1) initial application fee (includes inspection)--$1,500;

(2) renewal application fee (for a two-year period)--$1,000;

(3) change of instructional address for main campus (in-cludes inspections)--$300;

(4) application fee for an additional massage school loca-tion separate from the main campus (includes inspection) --$500; and

(5) renewal fee for an additional massage school location separate from the main campus--$500.

(e) Fees related to massage therapy instructors are as follows:



(2) renewal application fee (for a two-year period)--$100;

(f) The fees related to approved providers for continuing edu-cation are as follows:


(2) renewal application fee (for a two-year period)--$200.

(g) A duplicate/replacement fee for licenses issued under this chapter is $25.

(h) The fee for a criminal history evaluation letter is the fee prescribed under 60.42 of this title (relating to Criminal History Eval-uation Letters).

(i) A dishonored/returned check or payment fee is the fee pre-scribed under 60.82 of this title (relating to Dishonored Payment De-vice).

(j) Late renewal fees for licenses issued under this chapter are provided under 60.83 of this title (relating to Late Renewal Fees).




SUBCHAPTER J. ENFORCEMENT PROVISIONS 16 TAC 117.110 - 117.112 The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.




2017. TRD-201703587


TITLE 19. EDUCATION PART 2. TEXAS EDUCATION AGENCY CHAPTER 110. TEXAS ESSENTIAL KNOWLEDGE AND SKILLS FOR ENGLISH LANGUAGE ARTS AND READING The State Board of Education (SBOE) adopts new 110.1-110.7 and 110.21-110.24, concerning Texas Essential Knowl-edge and Skills (TEKS) for English language arts and reading. New 110.1 and 110.21 are adopted without changes to the proposed text as published in the March 3, 2017, issue of the Texas Register (42 TexReg 861) and will not be repub-lished. New 110.2-110.7 and 110.22-110.24 are adopted with changes to the proposed text as published in the March 3, 2017, issue of the Texas Register (42 TexReg 861). The adopted new sections add new English language arts and reading TEKS for elementary and middle school for implementation in the 2019-2020 school year.

REASONED JUSTIFICATION. Applications for appointment to English and Spanish language arts and reading TEKS review committees were accepted by the Texas Education Agency (TEA) from March 5, 2015, through April 6, 2015. The applications received were provided to SBOE members at the April 2015 meeting, and nominations for English and Spanish language arts and reading TEKS review committees and appointments of expert reviewers were made in spring 2015. Committee members were notified of the appointment in July 2015. The expert reviewers completed their review of the current TEKS and submitted initial reports to the SBOE in July 2015. Committee members participated in a training webinar in August 2015 in preparation for the first face-to-face meeting. The English and Spanish language arts and reading TEKS review committees convened in Austin in September 2015 to begin work on draft recommendations for the TEKS. The committees convened again in November 2015 to complete their initial draft recommendations.

In December 2015, the first draft recommendations were pro-vided to the board and to the board-appointed expert reviewers and posted to the TEA website for informal public feedback. In accordance with the board's review process, each of the expert reviewers and one member of each TEKS review committee pre-sented invited testimony at the January 2016 meeting.

The English and Spanish language arts and reading TEKS re-view committees convened for a third time in February 2016 in order to review feedback and work on the vertical alignment of the TEKS across grade levels and subjects. At the request of the board chair, representatives from each of the vertical alignment committees were asked to attend the April 2016 meeting to an-swer questions from board members. At that time, the board pro-vided additional direction for the English and Spanish language


http:110.22-110.24http:110.21-110.24

arts and reading TEKS committee members to address at their next meeting.

The committees met for a fourth time in April 2016 to address the board's direction and finalize their recommendations for revisions to the English and Spanish language arts and reading TEKS. The English and Spanish language arts and reading TEKS committees' final recommendations were provided to the board-appointed expert revie

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