Justification for Adoption of Administrative Rules

JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Driver Education and Safety

16 TAC Chapter 84, amendments at Subchapter E, §84.61 and §84.63

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code, Chapter 84, Subchapter E, §84.61 and §84.63, regarding the Driver Education and Safety program, without changes to the proposed text as published in the July 13, 2018, issue of the Texas Register (43 TexReg 4624). The rules will not be republished.

Senate Bill 848 (SB 848) and House Bill 912 (HB 912), 85th Legislature, Regular Session (2017) removed outdated language; expanded the population of persons who are authorized to provide instruction in the ‘parent taught’ driver education program; reduced the driver education course provider bond to $10,000; and authorized driver education and driving safety course completion certificates to be issued electronically. In a previous rulemaking, published in the Texas Register (43 TexReg 1431), the Texas Department of Licensing and Regulation (Department) adopted provisions regarding SB 848 and HB 912. This rule adoption implements the remainder of SB 848 and HB 912 regarding the issuance of electronic certificates. The adopted rules are necessary to complete the implementation of SB 848 and HB 912.

The adopted amendments to §84.61 require driving safety schools and course providers to submit a plan for the electronic issuance of uniform certificates of course completion for approval by the Department prior to issuing them electronically.

The adopted amendments to §84.63 allow for certificates to be issued electronically and amends the fee for a duplicate certificate to be more flexible.

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the July 13, 2018, issue of the Texas Register (43 TexReg 4624). The deadline for public comment was August 13, 2018. The Department received two comments during the 30-day public comment period and one late comment. The public comments received are summarized below.

Comment: One commenter stated that he wanted to see the Department issue a type of certificate for a fee as a prerequisite to conducting driving tests to prevent examiners from performing unauthorized tests.

Department Response : The driving test is administered by the Texas Department of Public Safety. The Department did not make any changes to the proposed rules in response to this comment.

Comment: One commenter suggested that the fee for a duplicate uniform certificate of course completion of a driving safety course or specialized driving safety course under §84.63(a)(16) be amended to not exceed $15. The commenter notes the fee has not been addressed in several years and that the expense for issuing such certificates has increased since the rule had been adopted. The proposed rule amendment places the limit for a duplicate uniform certificate of course completion at $10.

Department Response : The Department reviewed the commenter’s concern related to the expense associated with issuing a duplicate certificate. However, the Department disagrees with increasing the fee to cover additional business expenses. SB 848 and HB 912 allows for the issuance of electronic certificates, which would include duplicate certificates. The Department expects the overall expenses associated with issuing a certificate to decrease due to the ability to issue a certificate electronically. The Department did not make any changes to the proposed rule in response to this comment.

Comment: The late commenter expressed concern about the alleged unsafe use and storage of docked and dock-less vehicles, such as Segways, scooters, and bicycles. The commenter noted that irresponsible use of these vehicles is a potential danger to persons with disabilities who share the streets and sidewalks. The commenter noted unsafe use of such vehicles by riders is a growing problem and suggests development of an educational safety program for motorists employing such devices when either moving from another state or renewing a driver license. The commenter asserted that such a program designed to teach proper usage and storage of such vehicles will reduce possible injury to persons with disabilities.

In the same comment, the commenter opined that Ride Share companies and their drivers be required to take refresher courses every six months to stay updated on changes in traffic laws and teach common sense driving. The commenter suggested that Ride Share companies also be required to have accessible vehicles available for persons with disabilities employing fixed-frame wheelchairs.

Department Response : The Department appreciates the commenter’s concerns. The current rule proposal does not address this issue. However, the Department recognizes the issues raised with this comment and notes that the subject at hand related to docked and dock-less vehicles may need to be addressed by other agencies or municipalities.

The issues related to ride sharing raised by the commenter are currently addressed under Chapter 2402, Texas Occupations Code, specifically Section 2402.112, which specifically requires a nondiscrimination policy be developed by Transportation Network Companies (TNC) to assist persons with disabilities in obtaining pre-arranged rides from ride sharing companies. Section 2402.113 of the Texas Occupations Code requires a TNC operating in the four largest state markets to conduct a two-year study to determine the availability and accessibility of TNC vehicles to persons with disabilities employing fixed-frame wheelchairs. Periodic reports are to be submitted by those TNCs to examine the frequency of usage and the wait time for persons with disabilities employing fixed-frame wheelchairs seeking a pre-arranged ride. The results of this study are expected to be used to determine if there is an adequate number of ridesharing resources available for persons with disabilities employing fixed-frame wheelchairs. The Department did not make any changes to the proposed rules in response to this comment.

The Driver Training and Traffic Safety Advisory Committee (Committee) met on August 29, 2018, to discuss the proposed rules and the comments received. The Committee recommended adopting the rules without changes.

At its meeting held on September 25, 2018, the Commission adopted the proposed rules without changes as recommended by the Committee and the Department.

The amendments are adopted under Texas Occupations Code, Chapter 51 and Texas Education Code, Chapter 1001, 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, Chapter 51 and Texas Education Code, Chapter 1001. No other statutes, articles, or codes are affected by the adoption.

Subchapter E. Driving Safety Schools, Course Providers and Instructors

§84.61. Driving Safety School and Course Provider Responsibilities .

(a) Course providers must be located, or maintain a registered agent, in the State of Texas. All instruction in a driving safety or specialized driving safety course shall be performed in locations approved by the department and by department licensed instructors. However, a student instructor trainee may teach the 12 hours necessary for licensing in a department approved location under the direction and in the presence of a licensed driving safety or specialized driving safety instructor trainer who has been trained in the curriculum being instructed.

(b) Each course provider or employee shall:

(1) ensure that instruction of the course is provided in schools currently approved to offer the course, and in the manner in which the course was approved;

(2) maintain a current mailing address with the department;

(3) ensure that the course is provided by persons who have a valid current instructor license with the proper endorsement issued by the department, except as provided in subsection (a);

(4) ensure that schools and instructors are provided with the most recent approved course materials and relevant data and information pertaining to the course within sixty (60) days of approval. Instructor training may be required and shall be addressed in the approval notice;

(5) ensure that applications for licenses or approvals are forwarded to the department within ten (10) days of receipt at the course provider facilities;

(6) ensure that instructor performance is monitored. A written plan describing how instructor performance will be monitored and evaluated shall be provided to the schools. The plan shall identify the criteria upon which the instructors will be evaluated, the procedure for evaluation, the frequency of evaluation (a minimum of once a year), and the corrective action to be taken when instructors do not meet the criteria established by the course provider. The instructor evaluation forms must be kept on file either at the course provider or school location for a period of one year;

(7) develop and maintain a means to ensure the security and integrity of student information, especially financial and personal information, in transit and at rest;

(8) develop and maintain a means to ensure the privacy of student data, including personal and financial data, and make the corporate privacy policy available to all course students;

(9) submit a plan for the electronic issuance of uniform certificates of course completion for approval by the department prior to its implementation;

(10) issue uniform certificates of course completion that comply with the certificate design specifications approved by the department;

(11) develop and maintain a department-approved method for issuing original and duplicate uniform certificates of course completion that, to the greatest extent possible, prevents the unauthorized production, alteration, or misuse of the certificates;

(12) report original and duplicate certificate data, by secure electronic transmission, to the department within five (5) days of issuance using guidelines established and provided by the department. The issue date indicated on the certificate shall be the date the course provider issues the certificate to the student.

(c) Each driving safety school owner-operator or employee shall:

(1) ensure that each individual permitted to give instruction at the school or any classroom location has a valid current instructor's license with the proper endorsement issued by the department, except as provided in subsection (a);

(2) prohibit an instructor from giving instruction or prohibit a student from receiving instruction if that instructor or student exhibits any effects of being intoxicated or otherwise impaired;

(3) provide instruction or allow instruction to be provided only in courses that are currently on the school's list of approved courses;

(4) evaluate instructor performance in accordance with the course provider plan;

(5) develop and maintain a means to ensure the security and integrity of student information, especially financial and personal information, in transit and at rest;

(6) pay a fee to the course provider that is equal to the fee paid by the course provider to the department for course completion certificate numbers for original certificates provided for the students of that school within seven (7) calendar days of the date each student successfully completes the driving safety course.

§84.63. Uniform Certificate of Course Completion for Driving Safety or Specialized Driving Safety Course.

(a) Course provider responsibilities. Course providers shall be responsible for original and duplicate uniform certificates of course completion in accordance with this subsection.

(1) The course provider of a driving safety or specialized driving safety course shall ensure that each instructor completes the verification of course completion document approved by the department. The verification of course completion document shall contain a statement to be signed by the instructor that states: "Under penalty of law, I attest to the fact that the student whose name and signature appear on this document has successfully completed the number of hours as required under Texas Education Code, Chapter 1001, and that any false information on this document will be used as evidence in a court of law and/or administrative proceeding." This verification of course completion document shall be returned to the course provider upon completion of each driving safety class and maintained for no less than three years.

(2) The course provider shall implement and maintain a policy which effectively ensures protective measures are in use at all times for securing original and duplicate uniform certificates of course completion and course completion certificate numbers. The records and unissued or unnumbered original and duplicate uniform certificates of course completion shall be readily available for review by representatives of the department.

(3) The course provider shall maintain electronic files with data pertaining to all course completion certificate numbers purchased from the department. The course provider shall make available to the department upon request an ascending numerical accounting record of the numbered uniform certificates of completion issued. The course provider shall ensure security of the data.

(4) The course provider shall ensure that effective measures are taken to preclude lost data and that a system is in place to recreate electronic data for all certificate numbers, whether used or not used, and all certificates that have been issued.

(5) Course providers shall issue uniform certificates of course completion only to students who have successfully completed all elements of the course provider's approved driving safety or specialized driving safety course taught by department-licensed instructors in department-approved locations as indicated on the verification of course completion document or student footprint.

(6) Course providers shall ensure that adequate training is provided regarding course provider policies and updates on course provider policies to all driving safety schools and instructors offering their approved driving safety or specialized driving safety course.

(7) Course providers shall report all unaccounted original and duplicate course completion certificate numbers or unissued certificates or duplicates to the department within five business days of the discovery of the incident. In addition, the course provider shall be responsible for conducting an investigation to determine the circumstances surrounding the unaccounted items. A report of the findings of the investigation, including preventative measures for recurrence, shall be submitted for approval to the department within thirty (30) days of the discovery.

(8) Each unaccounted or missing original or duplicate course completion certificate number or blank or unissued original or duplicate uniform certificate of completion may be considered a separate violation. This may include lost, stolen, or otherwise unaccounted original or duplicate course completion certificate number or blank or unissued original or duplicate uniform certificates of course completion.

(9) Course providers shall issue all original and duplicate uniform certificates of course completion using first-class or enhanced postage, equivalent commercial delivery method, or department approved electronic issuance method.

(10) Course providers shall not transfer course completion certificate numbers to a course other than the course for which the certificates were ordered from the department.

(11) No course provider or employee shall complete, issue, or validate a uniform certificate of course completion to a person who has not successfully completed all elements of the entire course as verified by a department-licensed instructor.

(12) No course provider or employee shall issue, transfer, or transmit an original or duplicate uniform certificate of course completion bearing the serial number of a certificate or duplicate previously issued.

(13) Course providers shall sequentially number original uniform certificates of course completion from the block of numbers purchased from the department.

(14) When a duplicate uniform certificate of course completion is issued by a course provider, the duplicate certificate shall bear a serial number from the block of numbers purchased from the department by the course provider. The duplicate certificate of course completion shall clearly indicate the number of both the duplicate and the original serial number of the certificate being replaced.

(15) Any item on a duplicate uniform certificate of course completion that has different data than that shown on the original certificate must clearly indicate both the original data and the replacement data; for example, a change in the date of course completion must show the correct date and "changed from XX," where "XX" is the date shown on the original uniform certificate of course completion.

(16) The fee for a duplicate uniform certificate of course completion shall not exceed $10. If the student requests a duplicate within thirty (30) days of the date of issue of the original certificate because the original was not received or was damaged so as to be unusable or was issued with errors due to no fault of the student, the course provider shall issue the duplicate at no cost to the student. Course providers shall ensure that schools endorsed to offer the approved course are aware of this rule and shall include this information in the student enrollment contract.

(17) Course providers shall implement and maintain methods for efficiently issuing original uniform certificates of course completion so that issuance of duplicate certificates is kept at a minimal rate.

(b) School owner responsibilities. In order to prevent misuse of uniform certificates of course completion, driving safety school owners shall ensure that:

(1) the course provider policies are followed and communicated to all instructors and employees of the school; and

(2) all records are returned to the course provider in a timely manner as set forth by the course provider.

(c) Instructor responsibilities. In order to prevent misuse of uniform certificates of course completion, driving safety and specialized driving safety instructors shall ensure that:

(1) all records are returned to the driving safety school to be forwarded to the course provider within the time allowed by course provider policy;

(2) the verification of course completion document provided by the course provider is signed by the instructor who conducted the class upon completion of the class;

(3) the entire course is completed prior to signing the verification of course completion document;

(4) the court information is obtained from each student taking the driving safety or specialized driving safety class for the purposes of Texas Code of Criminal Procedure, Article 45.051 and 45.0511; and

(5) the instructor adheres to the school and course provider policies.

Filed with the Office of the Secretary of State, on October 8, 2018.


Brian E. Francis
Executive Director
Texas Department of Licensing and Regulation