|(a) The Council shall adopt rules necessary to perform
its duties and implement Title 3, Subtitle I, Chapter 507 of the Occupations
Code. When carrying out its rulemaking functions, the Council shall
abide by the requirements of the Administrative Procedure Act found
in Chapter 2001 of the Government Code.
(b) The Council shall have exclusive rulemaking authority
for the agency, including rules governing general agency operations,
administration of licensure, investigation of complaints, and sanction
procedures. In connection with this rulemaking authority, the Council
must also review draft rules proposed by each member board for anti-competitive
impacts, administrative consistency, and good governance concerns.
(c) The Council may propose and adopt a rule governing
those matters set forth in §507.153(a) of the Occupations Code
if a draft rule has been proposed by the member board for the profession.
Member boards may not propose new draft rules or changes to rules
except as authorized by §507.153(a).
(d) Member boards must submit a new draft rule or rule
change to the Council for consideration by submitting a draft of the
rule with any deletions crossed through and additions underlined.
The draft must also contain each of the notice components required
in a preamble (e.g., §2001.024 of the Government Code) when proposing
a new rule or changes to an existing rule. When submitting a new draft
rule or rule change to the Council, member boards must also submit
any information or comments received from the public in connection
with the proposed rule.
(e) When reviewing a draft rule proposed by a member
board, the Council may:
(1) Request additional information relevant to the
rule from the member board;
(2) Require the member board to conduct new or additional
analysis of possible implications of the rule;
(3) Solicit public comment or hold public hearings,
or alternatively, request the member board do so; and
(4) Make non-substantive, editorial changes to the
rule as necessary.
(f) Following the review of a draft rule submitted
by a member board, the Council shall either accept the draft rule
as proposed and initiate formal rulemaking proceedings or return the
draft rule to the member board for revision. When returning a rule
for revision, the Council must include an explanation of the decision
to reject the rule as proposed, and may recommend changes that would
make the rule acceptable to the Council.
(g) The Council shall, with regard to rules proposed
pursuant to §507.153(a) of the Occupations Code, share with the
appropriate member board any public comments received following publication
of a proposed rule in the Texas Register. Following
publication of a proposed rule and review of any public comments received,
a member board shall suggest any changes needed to the proposed rule
or vote to recommend adoption, tabling, or withdrawal of the rule
and advise the Council of such. Thereafter, the Council may adopt
the rule as proposed, withdraw or table the rule in accordance with
the member board's recommendation, or return the rule to the member
board for further revision. When returning a rule for revision, the
Council must include an explanation of the decision to not adopt the
rule as proposed, and may recommend any changes that would make the
rule acceptable to the Council.
(h) The Council may make non-substantive, editorial
changes to a draft rule as necessary.
(i) The Council shall consider each of the following
factors when reviewing a draft rule submitted by a member board:
(1) Whether the proposed rule promotes a clearly articulated
and affirmatively expressed policy as established by the legislature
to displace competition with government action, or whether the proposed
rule reflects the exercise of discretion or implied authority by a
(2) Whether absence of the proposed rule poses a significant
risk of harm or danger to the public health, safety, or welfare of
the residents of the state that is easily recognizable and not remote
or dependent on tenuous argument;
(3) Whether the proposed rule seeks to regulate activities
or services requiring specialized skill or training and whether the
public clearly needs and will benefit from the proposed rule;
(4) Whether the proposed rule would have the effect
of directly or indirectly increasing the cost of mental health services
and, if so, whether the increase would be more harmful to the public
than the harm that might result from the absence of the proposed rule;
(5) Whether the proposed rule would significantly reduce
market participation or competition in the state and, if so, whether
the reduction would be more harmful to the public than the harm that
might result from the absence of the proposed rule; and
(6) Whether the residents of the state are or may be
effectively protected by other means.