CHAPTER 35. PRIVATE SECURITY
SUBCHAPTER A. GENERAL PROVISIONS
The Texas Department of Public Safety (the department) proposes amendments to §35.5 and §35.8 and new §35.10, concerning General Provisions. The changes to §35.5 are required by Senate Bill 968, 87th Legislative Session, and prohibit licensees from refusing entry by or service to a customer who does not certify as having received a COVID-19 vaccination or as being in post-transmission recovery. The amendments to §35.8 clarify that the rule applies only to company license holders and not individuals, and establishes an express rule of conduct regarding misrepresentation and causing confusion among clients. New §35.10 establishes guidelines for private investigators and commissioned security officers executing capiases or arrest warrants.
Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there will be no fiscal implications for state or local government, or local economies.
Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the sections as proposed. There is no anticipated economic cost to individuals who are required to comply with the rules as proposed. There is no anticipated negative impact on local employment.
Ms. Whittenton has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be greater clarity and consistency in the regulation of the private security industry.
The department has determined this proposal is not a “major environmental rule” as defined by Texas Government Code, §2001.0225. “Major environmental rule” is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.
The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require the creation of new employee positions nor eliminate current employee positions; will not require an increase or decrease in future legislative appropriations to the agency; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does create a new regulation. The proposed rulemaking does not expand, limit or repeal an existing regulation. The proposed rule does not increase or decrease the number of individuals subject to the rule’s applicability. During the first five years the proposed rule is in effect the proposed rule should not impact positively or negatively the state’s economy.
Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, by email at RSD.Rule.Comments@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.
This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department’s work; §411.506, which authorizes the commission to adopt rules establishing procedures for the informal resolution of complaints filed against private security licensees; and Texas Occupations Code, §1702.061(a), which authorizes the Public Safety Commission to adopt rules to guide the department in its administration of Texas Occupations Code, Chapter 1702.
Texas Government Code, §411.004(3) and §411.506, and Texas Occupations Code, §1702.061(a), are affected by this proposal.
§35.5.Standards of Conduct.
(a) The State Seal of Texas may not be displayed as part of a uniform or identification card, or markings on a motor vehicle, other than such items prepared or issued by the department.
(b) All licensees and company representatives shall cooperate fully with any investigation conducted by the department, including but not limited to the provision of employee records upon request by the department and compliance with any subpoena issued by the department. Commissioned security officers and personal protection officers shall cooperate fully with any request of the Medical Advisory Board made pursuant to Health and Safety Code, §12.095 relating to its determination of the officer’s ability to exercise sound judgment with respect to the proper use and storage of a handgun. Violation of this subsection may result in the suspension of the license or commission for the duration of the noncompliance.
(c) An individual licensee issued a pocket card shall carry the pocket card on or about their person while on duty and shall present same to a peace officer or to a representative of the department upon request.
(d) A company license holder may not require a customer provide any documentation certifying that the customer has received a COVID-19 vaccination, or is in post-transmission recovery, to gain entry to the licensee’s premises or to receive regulated services from the license holder.
§35.8.Consumer Information and Signage.
(a) A company license holder [licensee] shall, either orally or in writing, notify all clients or recipients of services of the license number and the mailing address, telephone number, and email address of the department’s Regulatory Services Division for the purpose of directing complaints.
(b) If a company license holder [licensee] chooses to provide the notice required by subsection (a) of this section in written form, the notice shall contain the company’s license number, and mailing address, telephone number, and email address of the department, in a type face of the same size as that which appears in the document as a whole but in no case less than ten (10) point font.
(c) All company license holders [licensees ] must display conspicuously in the principal place of business and in any branch office a sign containing the name, mailing address, telephone number, and email address of the department’s Regulatory Services Division, and a statement informing consumers or recipients of services that complaints against licensees may be directed to the department.
(d) The company’s license number must be displayed on any vehicle on which the company name is displayed, and must be in letters and numbers at least one (1) inch high and permanently affixed or magnetically attached to each side of the vehicle in a color contrasting with the background color.
(e) A company license holder may not act in a manner to cause reasonable confusion or misunderstanding on the part of a consumer or the public regarding the services provided or to be provided, or the charges for those services.
§35.10.Execution of Capias or Arrest Warrant.
(a) A private investigator or commissioned security officer executing a capias or an arrest warrant on behalf of a bail bond surety may not:
(1) enter a residence without the consent of the occupants;
(2) fail to clearly identify themselves, both orally and by displaying their pocket card, as a private security officer or private investigator, as applicable, working on behalf of a bail bond surety;
(3) wear, carry, or display any apparel, uniform, badge, shield, or other insignia or emblem that gives the impression that the private investigator or commissioned security officer is a peace officer;
(4) brandish, point, exhibit, or otherwise display a firearm at any time, except as otherwise authorized by law or this chapter;
(5) execute the capias or warrant without written authorization from the surety; or
(6) notwithstanding Penal Code, §9.51, use deadly force.
(b) A commissioned security officer executing a capias or arrest warrant shall:
(1) wear the security officer uniform issued by the employing company; and
(2) if armed, carry the handgun openly, in a holster.
(c) A private investigator executing a capias or arrest warrant may not:
(1) wear a uniform or other apparel with the intention of creating the impression of being a security officer or peace officer; or
(2) openly carry a handgun, notwithstanding being licensed under Subchapter H, Chapter 411, Government Code or otherwise authorized under state law to possess a firearm.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency’s legal authority to adopt.
Filed with the Office of the Secretary of State on October 15, 2021.
TRD-202104068
D. Phillip Adkins
General Counsel
Texas Department of Public Safety
Earliest possible date of adoption: November 28, 2021
For further information, please call: (512) 424-5848
SUBCHAPTER D. DISCIPLINARY ACTIONS
The Texas Department of Public Safety (the department) proposes amendments to §35.52, concerning Administrative Penalties. These rule changes will authorize the department to suspend the license following the licensee’s refusal to pay a finally adjudicated administrative penalty, clarify the consequences of revocation for purposes of reapplication, clarify that the actions of the company representative are to be construed as the actions of the company, and clarify the distinction between the violations of operating with an expired license and of operating without a license. Changes to the penalty schedule (attached graphic) are proposed to simplify and clarify the specific violations and the related penalties.
Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period this rule is in effect there will be no fiscal implications for state or local government, or local economies.
Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the section as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.
Ms. Whittenton has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of enforcing the rule will be greater clarity and consistency in the regulation of the private security industry.
The department has determined this proposal is not a “major environmental rule” as defined by Texas Government Code, §2001.0225. “Major environmental rule” is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.
The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require the creation of new employee positions nor eliminate current employee positions; will not require an increase or decrease in future legislative appropriations to the agency; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create a new regulation. The proposed rulemaking does not expand, limit or repeal an existing regulation. The proposed rule does not increase or decrease the number of individuals subject to the rule’s applicability. During the first five years the proposed rule is in effect the proposed rule should not impact positively or negatively the state’s economy.
Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, by email at RSD.Rule.Comments@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.
This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department’s work; §411.506, which authorizes the commission to adopt rules establishing procedures for the informal resolution of complaints filed against private security licensees; and Texas Occupations Code, §1702.061(a), which authorizes the Public Safety Commission to adopt rules to guide the department in its administration of Texas Occupations Code, Chapter 1702.
Texas Government Code, §411.004(3) and §411.506, and Texas Occupations Code, §1702.061(a), are affected by this proposal.
§35.52.Administrative Penalties.
(a) The administrative penalties in this section are guidelines to be used in enforcement proceedings under the Act. The fines are to be construed as maximum penalties only, and are subject to application of the factors provided in Texas Government Code, §411.524.
Figure: 37 TAC §35.52(a) (.pdf)
[Figure: 37 TAC §35.52]
(b) The failure to pay an administrative penalty that has become final, whether by the passage of the deadline to appeal or by final court disposition, whichever is later, will result in suspension of the license with no further notice or right to appeal. The suspension will take effect upon the passage of the deadline to appeal and will remain in effect until the penalty is paid in full.
(c) A license holder whose license is revoked for an administrative violation may reapply as a new applicant after the second anniversary of the date of the revocation. An application submitted prior to the second anniversary of the date of the revocation will be denied.
(d) A violation of this Chapter or the Act by a company representative as defined in §35.1 of this title (relating to Definitions) acting on behalf of a licensed company will be construed as a violation by the company.
(e) The violation of operating with an expired license applies to operation within the one year grace period to renew. The violation of operating without a license will apply to those operating after the one year grace period.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency’s legal authority to adopt.
Filed with the Office of the Secretary of State on October 15, 2021.
TRD-202104069
D. Phillip Adkins
General Counsel
Texas Department of Public Safety
Earliest possible date of adoption: November 28, 2021
For further information, please call: (512) 424-5848
SUBCHAPTER E. ADMINISTRATIVE HEARINGS
The Texas Department of Public Safety (the department) proposes amendments to §35.62, concerning Preliminary Hearing; Settlement Conference. These rule changes remove a reference to a previously repealed rule and simplify the language.
Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period this rule is in effect there will be no fiscal implications for state or local government, or local economies.
Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the section as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.
Ms. Whittenton has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of enforcing the rule will be greater clarity and consistency in the regulation of the private security industry.
The department has determined this proposal is not a “major environmental rule” as defined by Texas Government Code, §2001.0225. “Major environmental rule” is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.
The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require the creation of new employee positions nor eliminate current employee positions; will not require an increase or decrease in future legislative appropriations to the agency; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create a new regulation. The proposed rulemaking does not expand, limit or repeal an existing regulation. The proposed rule does not increase or decrease the number of individuals subject to the rule’s applicability. During the first five years the proposed rule is in effect the proposed rule should not impact positively or negatively the state’s economy.
Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, by email at RSD.Rule.Comments@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.
This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department’s work; §411.506, which authorizes the commission to adopt rules establishing procedures for the informal resolution of complaints filed against private security licensees; and Texas Occupations Code, §1702.061(a), which authorizes the Public Safety Commission to adopt rules to guide the department in its administration of Texas Occupations Code, Chapter 1702.
Texas Government Code, §411.004(3) and §411.506, and Texas Occupations Code, §1702.061(a), are affected by this proposal.
§35.62.Preliminary Hearing; Settlement Conference.
(a) A person who receives notice of the department’s intention to deny an application for a license, to reprimand, suspend or revoke a license, or to impose an administrative penalty under §35.52 of this title (relating to Administrative Penalties), may appeal the decision by submitting a request to appeal by mail, facsimile, or electronic mail, to the department in the manner provided on the department’s Private Security Program website within thirty (30) calendar days after receipt of notice of the department’s proposed action. If a written request to appeal is not submitted within thirty (30) calendar days of the date notice was received, the right to appeal [an informal hearing or settlement conference, as applicable, under this section or §35.66 of this title (relating to Hearings Before The State Office Of Administrative Hearings)] is waived, and the action becomes final.
(b) If the action is based on the person’s criminal history, a preliminary, telephonic hearing will be scheduled. Following the hearing, the department will either dismiss the proceedings and withdraw the proposed action, or issue a written statement of findings to the respondent either upholding or modifying the original proposed action.
(c) If the proposed action is based on an administrative violation, a settlement conference will be scheduled. The settlement conference may be conducted in person or by telephone, by agreement of the parties. Following the settlement conference, the parties will execute an agreed order, or, if no agreement is reached, the department will issue a written determination either upholding or modifying the originally proposed action.
(d) The department’s findings following an preliminary hearing, or its determination following a settlement conference, may be appealed to the State Office of Administrative Hearings by submitting a request by mail, facsimile, or electronic mail, to the department in the manner provided on the department’s Private Security Program website, within thirty (30) calendar days after receipt of the findings or determination. If a written request is not submitted within thirty (30) calendar days of the date notice was received, the findings or determination shall become final.
(e) Requests for continuance must be submitted in writing at least three (3) business days prior to the scheduled hearing or conference. Requests must be based on good cause. Multiple requests may be presumed to lack good cause and may be denied on that basis.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency’s legal authority to adopt.
Filed with the Office of the Secretary of State on October 15, 2021.
TRD-202104070
D. Phillip Adkins
General Counsel
Texas Department of Public Safety
Earliest possible date of adoption: November 28, 2021
For further information, please call: (512) 424-5848
SUBCHAPTER I. COMPANY RECORDS
The Texas Department of Public Safety (the department) proposes amendments to §35.111 and §35.112, concerning Company Records. These rule changes clarify the application of the rule to security departments of private businesses and political subdivisions, and authorize electronic storage and transmission of out of state company records. In addition, changes to §35.111 are intended to consolidate the requirements of §35.111 and §35.113, enabling the repeal of the latter.
Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there will be no fiscal implications for state or local government, or local economies.
Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the sections as proposed. There is no anticipated economic cost to individuals who are required to comply with the rules as proposed. There is no anticipated negative impact on local employment.
Ms. Whittenton has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be greater clarity and consistency in the regulation of the private security industry.
The department has determined this proposal is not a “major environmental rule ” as defined by Texas Government Code, §2001.0225. “Major environmental rule ” is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.
The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require the creation of new employee positions nor eliminate current employee positions; will not require an increase or decrease in future legislative appropriations to the agency; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create a new regulation. The proposed rulemaking does not expand, limit or repeal an existing regulation. The proposed rule does not increase or decrease the number of individuals subject to the rule’s applicability. During the first five years the proposed rule is in effect the proposed rule should not impact positively or negatively the state’s economy.
Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, by email at RSD.Rule.Comments@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.
This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department’s work; §411.506, which authorizes the commission to adopt rules establishing procedures for the informal resolution of complaints filed against private security licensees; and Texas Occupations Code, §1702.061(a), which authorizes the Public Safety Commission to adopt rules to guide the department in its administration of Texas Occupations Code, Chapter 1702.
Texas Government Code, §411.004(3) and §411.506, and Texas Occupations Code, §1702.061(a), are affected by this proposal.
§35.111.Employee Records.
Licensees and security departments of private businesses or political subdivisions registered with the department shall keep records of all employees licensed or commissioned under the Act. Any record required to be maintained under this chapter may be maintained in electronic form, so long as it is readily retrievable and presented to department personnel upon request. The employee records[,] detailed in this section[,] shall be maintained for a period of two (2) years from the last date of employment:
(1) Full name, date of employment, position, and most recent residential address of the employee[address];
(2) Social security number;
(3) Last date of employment;
(4) Date and place of birth;
(5) One photograph;
(6) The results of any drug tests;
(7) Documentation of a pre-employment check if required under §35.3 of this title (relating to Individual License Applicant Pre-employment Check); [and]
(8) All continuing education certificates or other proof of continuing education credits [training certificates] earned by the employee while employed by the private business or political subdivision, excluding commissioned security officer or personal protection officer training or proficiency certificates; and[.]
(9) The current duty assignments and duty stations of any security officers.
§35.112.Business Records.
[(a)] Licensees and security departments of private businesses or political subdivisions registered with the department shall maintain copies of the applicable records detailed in this section, or otherwise required under this chapter, for two (2) years from the later of the date the related service was provided or the date the contract was completed:
(1) All contracts for regulated service and related documentation reflecting the actual provision of the regulated service; and
(2) Copies of any timesheets, invoices, or scheduling records reflecting the employment dates of any licensed or commissioned employees.
[(b) If the company has no physical place of business within the State of Texas, the records shall be maintained:]
[(1) At the office of the registered agent within the State of Texas; or]
[(2) At any physical location within the State of Texas of an agent or employee of the company.]
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency’s legal authority to adopt.
Filed with the Office of the Secretary of State on October 15, 2021.
TRD-202104071
D. Phillip Adkins
General Counsel
Texas Department of Public Safety
Earliest possible date of adoption: November 28, 2021
For further information, please call: (512) 424-5848
37 TAC §35.113
The Texas Department of Public Safety (the department) proposes the repeal of §35.113, concerning Records Required on Commissioned Security Officers. This rule is being repealed in conjunction with amendments to §35.111 of this title (concerning Employee Records). The rule is being consolidated by moving the content of §35.113 to §35.111.
Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period this repeal is in effect there will be no fiscal implications for state or local government, or local economies.
Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the rulemaking as proposed. There is no anticipated economic cost to individuals who are required to comply with the rulemaking as proposed. There is no anticipated negative impact on local employment.
Ms. Whittenton has determined that for each year of the first five-year period the repeal is in effect the public benefit anticipated as a result of implementing the repeal will be greater clarity and simplicity in the regulation of the private security industry.
The department has determined this proposal is not a “major environmental rule” as defined by Texas Government Code, §2001.0225. “Major environmental rule” is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.
The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require the creation of new employee positions nor eliminate current employee positions; will not require an increase or decrease in future legislative appropriations to the agency; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create a new regulation. The proposed rulemaking does repeal an existing regulation. The proposed rule does not increase or decrease the number of individuals subject to the rule’s applicability. During the first five years the proposed rule is in effect the proposed rule should not impact positively or negatively the state’s economy.
Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, by email at RSD.Rule.Comments@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.
This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department’s work; §411.506, which authorizes the commission to adopt rules establishing procedures for the informal resolution of complaints filed against private security licensees; and Texas Occupations Code, §1702.061(a), which authorizes the Public Safety Commission to adopt rules to guide the department in its administration of Texas Occupations Code, Chapter 1702.
Texas Government Code, §411.004(3) and §411.506, and Texas Occupations Code, §1702.061(a), are affected by this proposal.
§35.113.Records Required on Commissioned Security Officers.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency’s legal authority to adopt.
Filed with the Office of the Secretary of State on October 15, 2021.
TRD-202104072
D. Phillip Adkins
General Counsel
Texas Department of Public Safety
Earliest possible date of adoption: November 28, 2021
For further information, please call: (512) 424-5848
SUBCHAPTER L. TRAINING
The Texas Department of Public Safety (the department) proposes amendments to §35.143 and §35.145, concerning Training. These rule changes simplify the manner in which certain instructors may establish the necessary experience and provide a simplified process by which retired law enforcement officers who are licensed as commissioned security or personal protection officers may establish firearm proficiency.
Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there will be no fiscal implications for state or local government, or local economies.
Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the sections as proposed. There is no anticipated economic cost to individuals who are required to comply with the rules as proposed. There is no anticipated negative impact on local employment.
Ms. Whittenton has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be greater simplicity and efficiency in the regulation of the private security industry.
The department has determined this proposal is not a “major environmental rule” as defined by Texas Government Code, §2001.0225. “Major environmental rule” is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.
The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require an increase or decrease in future legislative appropriations to the agency; require the creation of new employee positions nor eliminate current employee positions; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create, expand an existing regulation. However, it does limit an existing regulation by recognizing an alternative method by which retired law enforcement, licensed as commissioned security or personal protection officers, may establish firearm proficiency. The proposed rulemaking does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed rules are in effect, the proposed rules should not impact positively or negatively the state’s economy.
Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety by email at RSD.Rule.Comments@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.
This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department’s work; and Texas Occupations Code, §1702.061(a) and §1702.1675(f), which authorizes the Public Safety Commission to adopt rules to guide the department in its administration of Texas Occupations Code, Chapter 1702.
Texas Government Code, §411.004(3) and Texas Occupations Code, §1702.061(a) and §1702.1675(f), are affected by this proposal.
§35.143.Training Instructor Approval.
(a) An application for approval as a training instructor shall contain evidence of qualification as required by the department. Instructors may be approved for classroom or firearm training, or both. An individual may apply for approval for one or both of these categories. To qualify for classroom or firearm instructor approval, the applicant must submit acceptable certificates of training for each category. The classroom instructor and firearm certificates shall represent a combined minimum of forty (40) hours of department approved instruction.
(b) The items detailed in this subsection may constitute proof of qualification as a classroom instructor for security officers:
(1) An instructor’s certificate issued by Texas Commission on Law Enforcement (TCOLE);
(2) An instructor’s certificate issued by federal, state, or political subdivision law enforcement agency approved by the department;
(3) An instructor’s certificate issued by the Texas Education Agency (TEA);
(4) An instructor’s certificate relating to law enforcement, private security, or industrial security issued by a junior college, college, or university; or
(5) A license to carry handgun instructor certificate issued by the department.
(c) The items listed in this subsection may constitute proof of qualification as a firearm training instructor, if reflecting training completed within two (2) years of the date of the application:
(1) A handgun instructor’s certificate issued by the National Rifle Association;
(2) A firearm instructor’s certificate issued by TCOLE; or
(3) A firearm instructor’s certificate issued by a federal, state, or political subdivision law enforcement agency approved by the department.
(d) Proof of qualification as an alarm systems training instructor shall include proof of completion of an approved training course on alarm installation.
(e) Proof of qualification as a personal protection officer instructor shall include, but not be limited to:
(1) A firearm instructor’s certificate issued by TCOLE along with proof that the individual has instructed nonlethal self-defense or nonlethal defense of a third party for three (3) or more years. Evidence of instruction experience must include a one page detailed description of the training provided and the schedule or specific date of classes taught. [may include:]
[(A) Affidavit from employer; or]
[(B) A copy of curriculum taught.]
(2) An instructor’s certificate issued by federal, state, or political subdivision law enforcement academy along with proof that the individual has instructed nonlethal self-defense or nonlethal defense of a third party for three (3) or more years. Evidence of instruction experience must include a one page detailed description of the training provided and the schedule or specific dates of classes taught. [may include:]
[(A) Affidavit from employer; or]
[(B) A copy of curriculum taught.]
(3) An instructor’s certificate issued by TEA along with proof that the individual has instructed nonlethal self-defense or nonlethal defense of a third party for three (3) or more years. Evidence of instruction experience must include a one page detailed description of the training provided and the schedule or specific dates of classes taught. [may include:]
[(A) Affidavit from employer; or]
[(B) A copy of curriculum taught.]
(4) An instructor’s certificate relating to law enforcement, private security or industrial security issued by a junior college, college or university along with proof that the individual has instructed nonlethal self-defense or nonlethal defense of a third party for three (3) or more years. Evidence of instruction experience must include a one page detailed description of the training provided and the schedule or specific dates of classes taught. [may include:]
[(A) An affidavit from an employer; or]
[(B) A copy of curriculum taught.]
(5) Evidence of successful completion of a department approved training course for personal protection officer instructors.
(f) Notice shall be given in writing to the department within fourteen (14) days after a change in address of the approved instructor.
(g) In addition to summary actions under the Act, based on criminal history disqualifiers, the department may revoke or suspend an instructor’s approval or deny the application or renewal thereof upon evidence that:
(1) The instructor or applicant has violated any provisions of the Act or this chapter;
(2) The qualifying instructor’s certificate has been revoked or suspended by the issuing agency;
(3) A material false statement was made in the application; or
(4) The instructor does not meet the qualifications set forth in the provisions of the Act and this chapter.
§35.145.Handgun Course.
(a) In addition to the firearm qualification requirements as set forth in the Act, a department approved firearm training instructor may qualify a student by using:
(1) The Texas Department of Public Safety Primary Issued Handgun Qualification Course; or
(2) The Texas Department of Public Safety Approved License to Carry Handgun License Course.
(b) All individuals qualifying with a firearm to satisfy the requirements of the Act shall qualify with an actual demonstration by the individual of the ability to safely and proficiently use the category of firearm for which the individual seeks qualification.
(c) The categories of handguns are:
(1) SA–Semi-automatic; and
(2) NSA–Non semi-automatic.
(d) The SA qualification authorizes the carrying of either semi-automatic or non semi-automatic handguns.
(e) For purposes of this chapter and compliance with §1702.1685 of the Act, a firearms instructor who holds a firearms instructor proficiency certificate issued by the Texas Commission on Law Enforcement is a department approved instructor for the limited purpose of the firearm qualification of retired law enforcement officers licensed under the Act as commissioned security officers or personal protection officers. A certificate issued under this subsection need not comply with §35.147(b)(3)(A), (B) (with respect to the approval number only), or (C), of this chapter.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency’s legal authority to adopt.
Filed with the Office of the Secretary of State on October 15, 2021.
TRD-202104073
D. Phillip Adkins
General Counsel
Texas Department of Public Safety
Earliest possible date of adoption: November 28, 2021
For further information, please call: (512) 424-5848
SUBCHAPTER M. CONTINUING EDUCATION
The Texas Department of Public Safety (the department) proposes amendments to §35.161 and §35.162, concerning Continuing Education. The changes to §35.161, concerning Continuing Education Requirements, clarify that the renewal portion of Level III and IV training courses (the specifically required of commissioned security officers and personal protection officers) are required in order to comply with the continuing education requirements of those officers and that continuing education credits are only valid if completed within the two year period preceding the license’s current expiration date. In addition, an outdated reference to alarm salespersons is to be removed, as such individuals are no longer regulated pursuant to Senate Bill 616, 86th Legislative Session. The changes to §35.162, concerning Continuing Education Schools, create limited exceptions to the requirement that continuing education credits be earned through department approved schools.
Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there will be no fiscal implications for state or local government, or local economies.
Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the sections as proposed. There is no anticipated economic cost to individuals who are required to comply with the rules as proposed. There is no anticipated negative impact on local employment.
Ms. Whittenton has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be the effective implementation of legislation, and greater clarity and consistency in the regulation of the private security industry.
The department has determined this proposal is not a “major environmental rule” as defined by Texas Government Code, §2001.0225. “Major environmental rule” is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.
The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require an increase or decrease in future legislative appropriations to the agency; require the creation of new employee positions nor eliminate current employee positions; nor will it require an increase or decrease in fees paid to the agency. The proposed changes to Rule 35.161 do not create, expand, or limit an existing regulation. The proposed changes to Rule 35.161 do not increase or decrease the number of individuals subject to its applicability. However, the proposed changes to Rule 35.162 do limit an existing regulation and do decrease the number of individuals subject to its applicability, as it creates new exemptions from the rule’s requirement that all continuing education credits be earned through department approved continuing education schools. During the first five years the proposed rules are in effect, the proposed rules should not impact positively or negatively the state’s economy.
Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety by email at RSD.Rule.Comments@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.
This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department’s work; and Texas Occupations Code, §1702.061(a), §1702.308 and §1702.309(a), which authorizes the Public Safety Commission to adopt rules to guide the department in its administration of Texas Occupations Code, Chapter 1702.
Texas Government Code, §411.004(3) and Texas Occupations Code, §1702.061(a), §1702.308 and §1702.309(a), are affected by this proposal.
§35.161.Continuing Education Requirements.
(a) An application to renew an individual license may not be submitted until the required minimum hours of department approved continuing education credits have been earned in accordance with the Act and this chapter. Proof of the required continuing education must be maintained by the employer and contained in the employee’s personnel file. All individual licensees shall indicate they have completed the required minimum hours of department approved continuing education credits on their application for renewal.
(b) Owners, partners, and shareholders who hold individual licenses as owners only, shall complete a total of eight (8) hours of continuing education, including seven (7) hours in the subject matter that relates to the type of regulated service provided by their company, and one (1) hour of ethics. Noncommissioned security officers, and all individuals not required to obtain a commission or license under the Act are specifically exempted from the continuing education requirements.
(c) All individual license holders not otherwise addressed in this section shall complete a total of eight (8) hours of continuing education, seven (7) hours of which must be in subject matter that relates to the type of individual license held, and one (1) hour of which must cover ethics.
(d) Private investigators with more than fifteen (15) years of continued licensure as a private investigator shall complete a total of twelve (12) hours of continuing education, eight (8) hours of which must relate to investigations, two (2) hours of which must cover ethics, and two (2) hours of which must involve the review of the Act and the rules of this chapter.
(e) Private investigators with less than fifteen (15) years of continued licensure as a private investigator shall complete a total of eighteen (18) hours of continuing education, fourteen (14) of which must relate to investigations, two (2) hours of which must cover ethics, and two (2) hours of which must involve the review of the Act and the rules of this chapter.
(f) Any individual licensed as a private investigator who fails to complete the required continuing education during the twenty-four (24) months of initial licensure is not eligible to make a new or renewal application until such time as the training requirement for the previous licensure period has been satisfied.
(g) Commissioned security officers and personal protection officers shall complete six (6) hours of continuing education by completing the renewal portions of the Level III or IV training course, as applicable. All continuing [Continuing] education for commissioned security officers and personal protection officers must be taught by department approved training schools and instructors. Commissioned security officers shall submit a firearms proficiency certificate along with the renewal application.
(h) During the first twelve (12) months of initial licensure, alarm system installers must complete the Alarm Level I training. This training consists of sixteen (16) hours of classroom instruction or equivalent online course as approved by the department, with two (2) hours covering the National Electrical Code (NEC) as it applies to low voltage. Alarm systems installer [or alarm systems salesperson] must earn eight (8) hours of continuing education credits in an alarm related field, with one (1) hour covering the National Electrical Code (NEC) as it applies to low voltage, during each subsequent twenty-four (24) month period. This requirement must be satisfied prior to the expiration date of the license and before renewal.
(i) For the protection of the installer and the general public, the work of an alarm system installer who has not completed the required sixteen (16) hours of instruction must be overseen by an installer who has completed the required sixteen (16) hours of instruction. The oversight required under this section need not involve direct physical supervision, but the overseeing installer is responsible for ensuring the installation complies with all applicable requirements and regulations.
(j) Any licensed alarm systems installer who fails to complete sixteen (16) hours of training during the twenty-four (24) months of initial licensure, or who fails to complete eight (8) hours of continuing education during any subsequent licensing period is not eligible to renew until all training requirements for the previous license period have been satisfied.
(k) Alarm monitors shall complete four (4) hours of continuing education relating to the duties and responsibilities of an alarm monitor.
(l) All individuals licensed as locksmiths must complete sixteen (16) hours of continuing education every two (2) years.
(m) Attendees of continuing education courses shall maintain certificates of completion furnished by the school director in their files for a period of two (2) years. Attendees shall furnish the department with copies of all certificates of completion upon request.
(n) Continuing education courses are only valid if completed within the two year period preceding the license’s current expiration date.
§35.162.Continuing Education Schools.
(a) Except as otherwise provided by this subchapter, all continuing education credits must be earned through department approved continuing education schools.
(b) All department approved continuing education schools shall comply with paragraphs (1) – (7) of this subsection: [subsection (b)(1) – subsection (b)(7):]
(1) Each school must identify to the department a school director as its agent responsible for ensuring the school’s compliance with this subchapter, including the maintenance of attendance records, the provision of such records to department personnel upon request, and the verification of curricula and instructors’ qualifications. The failure of this individual to perform these duties or to otherwise comply with this subchapter may result in the cancellation of the school’s certificate of approval and the rejection of claims for continuing education credit obtained from that school.
(2) School attendance records shall include:
(A) Subjects taught in each course of instruction;
(B) Total hours of each course of instruction and the hours instructed on each subject;
(C) Date of instruction;
(D) Name, license number, and date(s) of attendance for each individual that attended a course of instruction; and
(E) Name and qualifications of instructor.
(3) Schools shall issue certificates of attendance to licensees attending a course of instruction. The certificates of attendance shall contain the name and license number of the attendee, the date of attendance, the number of hours of attendance, and the course(s) of instruction attended. Each certificate shall be signed and dated by the school director.
(4) Schools shall maintain all records required by this section for a period of two (2) years.
(5) The school shall provide copies of all records required under this subchapter to the department upon request.
(6) The school director shall verify that the curriculum of each continuing education course offered is in compliance with this chapter.
(7) The school director shall verify the qualifications of each instructor.
(c) Attendees of courses of continuing education shall maintain certificates of completion furnished by the school director in their files for a period of two (2) years. Attendees shall furnish the department with copies of all certificates of completion upon request.
(d) Licensed companies with ten (10) or more licensed employees may make a written request for a letter of exemption allowing them to provide continuing education to those employees registered under the requesting company’s license. Such requests shall be addressed to the department. A letter of exemption granted under this section shall be valid for two (2) years. To qualify for a letter of exemption, the company must appoint a training director, assure that all training is in compliance with all related administrative rules, maintain proof of all training, and provide each licensed employee with a certificate of training as required by this section. There is no annual fee associated with a letter of exemption issued under this subsection. The exemption provided in this subsection does not apply to commissioned security officers or personal protection officers.
(e) The department may recognize as valid those continuing education credits that relate to the regulated services for which the individual is licensed and are earned through courses offered by:
(1) a local, state, or federal agency;
(2) an institution of higher education;
(3) a local, state, or national non-profit professional or trade association; or
(4) a continuing education school or program recognized by, or licensed with, another state’s private security licensing agency.
(f) The course completion certificate or other proof of completion must include the title and date of the course, the name of the entity providing the course, a description of the course sufficient to establish a relationship to the license held, and the number and category of credit hours being claimed. Credits claimed under this subsection may not be used to satisfy the continuing education requirements for commissioned security officers or personal protection officers.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency’s legal authority to adopt.
Filed with the Office of the Secretary of State on October 15, 2021.
TRD-202104074
D. Phillip Adkins
General Counsel
Texas Department of Public Safety
Earliest possible date of adoption: November 28, 2021
For further information, please call: (512) 424-5848