Justification for Adoption of Administrative Rules
16 TAC Chapter 92, new §§92.1, 92.10, 92.20 - 92.22, 92.30 - 92.32, 92.51, 92.52, 92.60, 92.80, 92.90, 92.91 and 92.95
The Texas Commission of Licensing and Regulation (Commission) adopts new rules at 16 Texas Administrative Code (TAC), Chapter 92, §§92.1, 92.10, 92.20 - 92.22, 92.30 - 92.32, 92.52, 92.80, 92.90, 92.91 and 92.95, regarding the registration of Course Providers and Online Responsible Pet Owner Courses, without changes to the proposed text as published in the January 12, 2018, issue of the Texas Register (43 TexReg 147). The rules will not be republished.
The Commission also adopts new rule at 16 TAC, Chapter 92, §92.51 and §92.60, regarding the registration of Course Providers and Online Responsible Pet Owner Courses, with changes to the proposed text as published in the January 12, 2018, issue of the Texas Register (43 TexReg 147). The rules will be republished.
The Texas Legislature enacted House Bill 162 (H.B. 162), 85th Legislature, Regular Session (2017), which established the registration of Course Providers and Online Responsible Pet Owner courses to be administered by the Commission and the Texas Department of Licensing and Regulation (Department). The adopted new rules provide for the Department to perform the various functions, including registration, compliance, and enforcement, necessary to regulate this program. The adopted new rules are necessary to implement H.B. 162.
The adopted new §92.1 establishes statutory authority.
The adopted new §92.10 creates the definitions to be used in the Responsible Pet Owners program.
The adopted new §92.20 provides for the course provider registration requirements.
The adopted new §92.21 establishes the renewal requirements for the course provider registration.
The adopted new §92.22 details when a registration may be denied.
The adopted new §92.30 provides for the responsible pet owner online course general requirements.
The adopted new §92.31 details the course requirements for the responsible pet owner online courses.
The adopted new §92.32 details the attendance verification requirements for the responsible pet owner online course.
The adopted new §92.51 establishes the responsibilities of course providers.
The adopted new §92.52 requires course providers to update information, including when a change of address occurs.
The adopted new §92.60 details the reporting and audit requirements and the manner by which reports must be submitted.
The adopted new §92.80 creates the fee structure to be used in the responsible pet owners program.
The adopted new §92.90 provides for complaints and investigations.
The adopted new §92.91 allows for administrative sanctions and penalties.
The adopted new §92.95 details the reporting requirements.
The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the January 12, 2018, issue of the Texas Register (43 TexReg 147). The deadline for public comments was February 12, 2018. During the 30-day public comment period the Department received comments from two interested parties. The public comments received are summarized by issue below.
Comment--The first commenter inquired as to why responsible pet owners would need this course.
Department Response--The Department appreciates the commenter’s inquiry and notes that House Bill 162 is designed for those defendants who are convicted of specific enumerated offenses involving animals. These rules have been promulgated to implement the directives from the legislation, and the goal of promoting responsible pet ownership throughout the state. The statute and the rules are directed at those individuals that violate the specific offenses. The Department did not make any changes to the proposed rules in response to this comment.
Rule Section 92.31
Comment--The second commenter contended the minimum length of the online course of two instructional hours, as indicated pursuant to subsection (f)(1), was insufficient to effectively convey all of the educational objections indicated in subsection (b) of the proposed rule. The commenter suggested increasing the minimum length of the course to five instructional hours to address the concern.
The commenter also raised an issue with subsection (b)(3). The commenter contended that the educational topics should have also addressed cockfighting, in addition to dog fighting.
Department Response--Subsection (f)(1) expresses a minimum amount of course length for online responsible pet owner courses to address the educational objectives. The Department will examine each application for course approval to determine if the course meets the educational objectives as enumerated in subsection (b). If it can do so within the minimum amount of time, the course shall be approved. The rule has been constructed to give applicants flexibility in the construction of the course to sufficiently meet the educational objectives, if the course length exceeds the minimum duration.
The Department notes that House Bill 162 addresses criminal convictions for specific offenses involving animals that would empower a judge to order a defendant to complete an online responsible pet owner course. The specific offenses do not include cockfighting, which is found under Texas Penal Code §42.105. While the legislation does not specifically include cockfighting as an enumerated offense for the imposition of an online responsible pet owner course, there is neither a statutory nor rule prohibition to the inclusion of course information on cockfighting to the course. The Department did not make any changes to the proposed rules in response to this comment.
Rule Section 92.32
Comment--The second commenter disagreed with subsection (c)(3)(C) that the participant should not be given the correct answer with an explanation after submitting an incorrect answer to a content validation question after completion of a major unit or section of the course. The commenter contended that the participant would receive an educational benefit in reinforcing the material in the mind of the participant if the correct answer was provided.
Department Response--The Department notes that education is a purpose of the course. The purpose of subsection (c)(3)(C) is to evaluate the participant’s mastery of the course content through the correct response to examination questions. Moreover, the test bank of questions is limited and if the course were to give the correct answers to incorrect responses, a participant that is required to retake the course may have an unfair advantage in remembering the correct response given to him in the event the same question appeared in a retest, rather than learning from paying attention to the course material. The Department did not make any changes to the proposed rules in response to this comment.
At its meeting held on February 20, 2018, the Commission adopted the proposed rules with changes as recommended by the Department.
The new rules are adopted under Texas Occupations Code, Chapter 51, which authorizes 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 Code of Criminal Procedure, Article 42A.511. No other statutes, articles, or codes are affected by the adoption.
These rules are promulgated under the authority of Article 42A.511, Code of Criminal Procedure and Texas Occupations Code Chapter 51.
The following terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.
(1) Attendance Verification--a system designed for personal validation of course participants with content validation throughout the full length of the course.
(2) Commission--The Texas Commission of Licensing and Regulation.
(3) Course--An online responsible pet owner course provided to a participant and approved by the department.
(4) Course Provider--A person registered by the department to offer online responsible pet owner courses.
(5) Department--The Texas Department of Licensing and Regulation.
(6) Instructional Hour-- One hour of instruction is equivalent to 50 minutes.
(7) Participant--An individual that receives court-ordered community supervision, pursuant to Article 42A.511, Code of Criminal Procedure, and is required to register and complete an online responsible pet owner course.
§92.20. Course Provider Registration Required.
(a) A person must register with and receive department approval, pursuant to Texas Occupations Code Chapter 51, before offering a course.
(b) To register as a course provider, an applicant must:
(1) submit an application on a form approved by the department; and
(2) pay all applicable fees.
§92.21. Course Provider Registration Renewals.
(a) Course provider registration is valid for one year, and may be renewed at the end of each registration period.
(b) To renew a registration, a course provider must:
(1) submit a renewal application on form approved by the department; and
(2) pay all applicable fees.
§92.22 Denial of Registration.
(a) The commission or the executive director may deny a registration, refuse to renew, or revoke a registration or course approval if the applicant or registered course provider has:
(1) violated an order of the commission or executive director, including an order for sanctions or administrative penalties;
(2) knowingly submitted false or incomplete information on the application; or
(3) provided false, misleading, or deceptive information in the application.
(b) If the commission or the executive director denies a registration, refuses to renew, or revokes a registration or course approval, a subsequent application for registration or course approval must contain a statement describing the circumstances leading to the denial or revocation and evidence to demonstrate that the basis for the denial or revocation no longer exists.
§92.30. Responsible Pet Owner Online Courses -- General Requirements.
(a) Each course offered by a course provider must be approved by the department before being offered and is valid for one year.
(b) To obtain approval of a course, a provider must file a completed application on a department-approved form and pay all applicable fees.
(c) If a provider’s registration expires, all course approvals for that provider shall expire.
§92.31 Responsible Pet Owner Online Courses -- Course Requirements.
(a) Each application for course approval must be accompanied by:
(1) a course outline that identifies the educational objectives required by subsection (b); and
(2) the time allotted for each educational objective.
(b) The educational objectives of online responsible pet owner courses must include, but are not limited to the promotion of:
(1) respect and observance of federal and state laws which protect livestock and non-livestock animals, and wildlife;
(2) responsible care for spaying, neutering and tethering of animals;
(3) state and federal laws related to cruelty to livestock and non-livestock animals, attacks on assistance animals and dog fighting;
(4) responsible care concepts to include health, safety and welfare for non-livestock and livestock animals, wildlife and bite prevention; and
(5) Chapter 802, Texas Occupations Code (Dog or Cat Breeders Act) and Title 16, Chapter 91, Texas Administrative Code (Dog or Cat Breeders Program).
(c) The course must be offered online. Each course must be timed and contain a procedure for attendance verification to ensure the participant is active for the full length of the course.
(d) The course must include the log-in information for the course including passwords and the procedure for attendance verification.
(e) Course materials must have the following characteristics:
(1) appropriate grammar, spelling and punctuation;
(2) appropriate illustrations and graphics that are consistent with the educational objectives shown in §92.31(b); and
(3) comprehensive presentation of subject matter that is consistent with the educational objectives shown in §92.31(b).
(f) The course must include:
(1) a minimum of two (2) instructional hours;
(2) built-in timers to ensure the minimum hours of instruction have been completed by the participant; and
(3) attendance verification.
§92.32 Responsible Pet Owner Online Courses -- Attendance Verification Requirements.
(a) Personal validation. The course provider shall maintain a system to validate the identity of the person taking the course. The personal validation system shall include the following requirements:
(1) Personal validation questions. The course provider shall ask a minimum of ten (10) personal validation questions throughout the course.
(2) Time to respond. The participant must correctly answer the online personal validation question within ninety (90) seconds. Failure by the participant to respond within ninety (90) seconds will result in the validation question being scored as incorrect.
(3) Placement of questions. At least one personal validation question shall appear in each major unit or section.
(4) Exclusion from the course. The course provider shall exclude the participant from the course after the participant has incorrectly answered more than thirty (30) percent of the personal validation questions.
(5) Correction of answer. The course provider may correct an answer to a personal validation question for a participant who inadvertently missed a personal validation question. In such a case, the course provider shall record both answers and an explanation of the reasons that the course provider corrected the answer.
(b) Alternative methods. Upon approval by the department, the course provider may use alternate methods that are at least as secure as the personal validation question method.
(c) Content validation. The course provider shall incorporate a course content validation process that verifies participant comprehension of course material related to the educational objectives shown in §92.31(b), including the following:
(1) Testing the participant's course comprehension. The course provider shall ask at least one course content validation question following each major unit or section.
(2) Course content validation question difficulty. The question shall be multiple choice. The question shall be difficult enough that the answer may not be easily determined without having viewed the contents of the major unit or section.
(3) Mastery of course content. The course provider shall test the participant's mastery of the course content by asking at least two questions from each major unit or section.
(A) Test bank. The test bank for course content mastery questions shall include at least five (5) questions from each major unit or section.
(B) Failure criteria. The course provider shall exclude the participant from the course after the participant has incorrectly answered more than thirty (30) percent of the content validation questions.
(C) Answer identification. The course provider shall not identify the correct answer to the content validation question to the participant.
§92.51. Responsibilities of Course Providers.
(a) A course provider must:
(1) ensure that courses are delivered online in a manner conducive to learning;
(2) include the department-issued provider and course numbers in all advertisements and webpages; and
(3) issue a certificate of completion to each participant who completes the course.
(b) The certificate of completion must be printable by the person completing the course and include:
(1) title and number of the course;
(2) unique participant registration number;
(3) course provider name, provider number, course name and number, and telephone number;
(4) case or cause number for the offense;
(5) offense type;
(6) court number and county of the offense;
(7) date of the offense;
(8) course completion date;
(9) number of instructional hours;
(10) name of the participant who completed the course;
(11) electronic signature of the course provider authorized representative, and the participant; and
(12) the following statement, signed by the participant: "Under penalty of law, I attest to the fact by name and signature on this document I have successfully completed the number of hours as required under Texas Administrative Code, Title 16, Chapter 92, and that any false information on this document will be used as evidence against me in a court of law and/or administrative proceeding.”
(c) A course provider may not publish false or misleading advertisements.
(d) Course providers are responsible for the conduct and administration of their courses, including the verification of participant attendance and course performance. Course providers must ensure that their courses are administered in a manner consistent with the representations contained in the application for course approval.
§92.52. Course Provider -- Change of Address and Information.
A course provider must notify the department in writing within thirty (30) calendar days of any change in the course provider’s address, telephone number, e-mail address, or course website address.
§92.60 Records and Audits.
(a) A course provider must retain participant records, as identified by §92.51(b), for a period of two years after completion of a course.
(b) To determine whether a course provider is complying with the requirements of this chapter, department employees and representatives may conduct an audit of the approved course. Audits may be conducted without prior notice to the course provider and department employees and representatives may enroll in a course without identifying themselves as employees or representative of the department.
(d) Upon request, a course provider must provide information, including copies of specified records, to the department within ten business days of the date of the request.
(a) Course provider application fee--$200.
(b) Course provider renewal application fee--$200.
(c) Online responsible pet owner course-approval fee per course--$100.
(e) Late renewal fees for registrations issued under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees).
(f) All fees paid to the department are non-refundable.
§92.90. Complaints; Investigations.
(a) Upon request from the department, a course provider must cooperate with the department, its employees and representatives, and furnish requested information concerning any department investigation.
(b) Within ten business days from the date of the request, a course provider must provide to the department any of its documents or records, unless otherwise prohibited by law.
(c) The course provider’s name, address, phone number, and provider number shall appear on all business-related communications, business website and advertisements from the provider. The following information: "Regulated by The Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, 1-800-803-9202 (in-state only), (512) 463-6599; website: “www.tdlr.texas.gov" shall appear for purposes of directing questions or complaints.
§92.91. Sanctions--Administrative Sanctions and Penalties.
If a person or entity violates any provision of Texas Occupations Code Chapter 51, this chapter, or any rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Texas Occupations Code, Chapter 51, and any associated rules.
§92.95. Reporting Requirements.
A course provider must submit a monthly report to the department containing the:
(1) total number of course completion certificates issued;
(2) name and county of residence of all participants;
(3) location of the court and county where the offenses occurred; and
(4) dates of course completion.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.
Filed with the Office of the Secretary of State, on February 22, 2018.
Brian E. Francis
Texas Department of Licensing and Regulation