10 TAC §§318.20, 318.22, 318.24, 318.26, 318.28, 318.30, 318.32
The Texas Residential Construction Commission (the "commission")
proposes for adoption new rules at Title 10, Part 7, Chapter 318, Subchapter
B, §§318.20, 318.22, 318.24, 318.26, 318.28, 318.30 and 318.32,
regarding the registration and certification of arbitrators who provide arbitration
services in disputes between homeowners and builders regarding residential
construction as provided for in Title 16, Property Code.
New §318.20 describes the application and the information required
of a person seeking to become certified by the agency as an arbitrator of
residential construction disputes.
New §318.22 notices those persons seeking to become certified arbitrators
that the application will be posted in the
Texas
Register
for a twenty-one day comment period.
New §318.24 states that after the comment period if the commission
has determined that it is in the public interest, the commission shall register
the arbitrator to be included on the list of certified arbitrators maintained
by the commission.
New §318.26 states that if the commission determines that the applicant
is not qualified or that it is not in the public interest to certify the applicant,
the commission shall provide written notice to the applicant detailing its
reasons for denial not later than the 15th day after the closing of the public
comment period on the application.
New §318.28 states that a person denied certification may appeal the
decision to the Executive Director. The Executive Director’s decision
is a final agency decision and is not subject to further administrative appeal.
New §318.30 states that certified arbitrators must provide the commission
with any material change in the information included on the application within
thirty (30) days of the change.
New §318.32 states registered arbitrators must be renew their registration
no later than thirty (30) days prior to the date of expiration of the effective
period of the registration as established by the commission. The person seeking
renewal shall submit a renewal application on a commission-prescribed form
accompanied by the appropriate fee as established by the commission. The person
must provide evidence that the person has completed five (5) hours of approved
continuing education since the effective date of registration provided by
the commission. The term "continuing education" includes attendance of a course
or seminar on arbitrations conducted by an accredited institution of higher
education, a state bar association, an entity organized for the purpose of
conducting educational seminars or courses that regularly conducts seminars
or courses for arbitrators or lawyers, or any other course or seminar approved
by the Executive Director for purposes of this subchapter. A person seeking
to renew under this section who is also an attorney licensed by the State
Bar of Texas may satisfy the continuing education requirements of this section
by satisfying the annual continuing legal education licensure requirements
set by the State Bar.
Stephen D. Thomas, Executive Director, has determined that for each year
of the first five-year period the new rules are in effect there will be no
fiscal implications for state or local governments as a result of enforcing
or administering the new rules.
Mr. Thomas has also determined that for each year of the first five-year
period the new rules are in effect, the public will benefit from the identification
of arbitrators who have experience in disputes involving residential construction.
Mr. Thomas has also determined that there will be no effect on large, small
and micro-businesses as a result of the adoption of these rules.
Mr. Thomas has also determined that for each year of the first five-year
period the proposed rules are in effect there will be no effect on local economies;
therefore, no local employment impact statement is required pursuant to Administrative
Procedure Act §2001.022.
Interested persons may submit written comments (16 copies) on the proposed
rules to Susan K. Durso, General Counsel, Texas Residential Construction Commission,
PO Box 13144, Austin, Texas, 78711. Comments may be submitted electronically
to
rulescomments@trcc.state.tx.us
. The deadline
for submission of comments with the commission is thirty (30) days from the
date of publication of the proposed rules in the
Texas Register
. Comments should be organized in a manner consistent
with the organization of the proposed rules.
The new rules are proposed to implement new legislation enacted during
the 78th Legislative Session, Regular Session, including House Bill 730. The
new rules are proposed for adoption pursuant to Property Code, Chapter 417,
which provides, in part, that the commission establish eligibility requirements
and procedures for person to become certified as arbitrators to perform arbitration
services in disputes involving residential construction and generally, pursuant
to Property Code §408.001, which provides authority for the commission
to adopt rules necessary for the implementation of Title 16, Property Code
(Act effective Sept. 1, 2003, 78th Leg., R.S., ch. 458, §1.01).
The proposed rules were also adopted on an emergency basis to comply with
new legislation enacted during the 78th Legislative Session, Regular Session,
including House Bill 730. The new rules were adopted under Chapter 417, Property
Code (Act effective Sept. 1, 2003, 78th Leg., R.S., ch. 458, §1.01),
which provides in part that the commission make a list of certified arbitrators
available to the public. The adoption of the emergency rules was necessary
to allow the commission to comply with the timetable prescribed by House Bill
730 and set out in Title 16, Property Code. These emergency rules are published
in the Emergency Rules section of this issue of the
Texas Register
.
The statutory provisions affected by the proposed rules are those
set forth in the Title 16, Property Code and House Bill 730, 78th Legislature.
No other statutes, articles, or codes are affected by the proposal.
§318.20.Application.
(a)
A person seeking to become registered as a residential
construction arbitrator with the commission must submit a completed application
on a commission-prescribed form accompanied by the appropriate fee.
(b)
A person seeking to become registered as a residential
construction arbitrator with the commission shall:
(1)
provide evidence that the person has acquired a minimum
of five (5) years of experience conducting arbitrations between homeowners
and builders involving construction defects;
(2)
certify that the person is familiar with the statutory
warranties and building and performance standards established in Property
Code Chapter 430 and with the provisions of Property Code Chapter 27;
(3)
certify that the person has not had a professional license
or certification suspended or revoked in any jurisdiction; and
(4)
submit a list that includes any person registered as a
builder or certified as a third-party inspector with whom the applicant has
a direct or indirect personal or business relationship that could reasonably
be considered to create a conflict of interest for that person in serving
as an arbitrator in a dispute involving the person listed as a party or a
witness.
§318.22.Publication and Comment.
(a)
The commission shall publish in the
Texas Register
notice of the application of each person seeking to
become registered under this subchapter.
(b)
The commission shall accept public comment on each application
for twenty-one (21) days after the date of publication of the notice.
§318.24.Registration.
After the conclusion of the comment period under §318.22, if the
commission finds it to be in the public interest, the commission shall register
the arbitrator under this subchapter.
§318.26.Denial of an Application.
(a)
The commission shall deny an application for registration
if the commission determines that the applicant is not qualified or if registration
of the applicant would otherwise not be in the public interest.
(b)
If the commission denies an application, the commission
shall provide written notice to the applicant not later than the 15th day
after the closing of the public comment period on the application.
§318.28.Appeal.
(a)
A person whose application has been denied under §313.26
may appeal the decision to the Executive Director.
(b)
The decision of the Executive Director is a final agency
decision not subject to further administrative appeal.
§318.30.Material Change in Information.
Each person who is registered as an arbitrator under this subchapter
shall report to the commission in writing any material change in the information
provided to the commission pursuant to this subchapter within thirty (30)
days of the change.
§318.32.Renewal of Registration.
(a)
A person who has been registered by the commission under
this subchapter must submit an application for renewal of the registration
no later than thirty (30) days prior to the expiration of the effective date
of the registration established by the commission.
(b)
The person seeking renewal shall submit a renewal application
on a commission-prescribed form accompanied by the appropriate fee as established
by the commission.
(c)
The person must provide evidence that the person has completed
five (5) hours of approved continuing education since the effective date of
registration provided by the commission.
(d)
For purposes of renewal under this section "approved continuing
education" includes
(1)
attendance of a course or seminar on arbitrations conducted
by:
(A)
an accredited institution of higher education;
(B)
a state bar association; or
(C)
an entity organized for the purpose of conducting educational
seminars or courses that regularly conducts seminars or courses for arbitrators
or lawyers; or
(2)
any other course or seminar approved by the Executive Director
for purposes of this subchapter.
(e)
A person seeking to renew under this section who is also
an attorney licensed by the State Bar of Texas may satisfy the continuing
education requirements of this section by satisfying the annual continuing
legal education licensure requirements set by the State Bar.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 9, 2004.
TRD-200400166
Susan Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: February 22, 2004
For further information, please call: (512) 463-9524