Texas Administrative Code Title 19

Education: As effective August 6, 2010

Chapter 1

Subchapter A

§1.1: Dates for Regular Quarterly Meetings of the Board

Regular quarterly meetings of the Coordinating Board, hereinafter referred to as the Board, will be held in January, April, July, and October, with the understanding that the chair may at a regular quarterly meeting, alter the date of a subsequent meeting.

Comments

Source Note: The provisions of this §1.1 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.2: Authority of the Commissioner to Interpret Rules

Except as otherwise provided, no provisions of Board rules shall be deemed exhaustive of the jurisdiction of the Commissioner of Higher Education, hereinafter referred to as the Commissioner. The Commissioner shall have the responsibility to interpret Board rules whenever interpretation is necessary so that the business of the Board may move along with order and expediency.

Comments

Source Note: The provisions of this §1.2 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.3: Educational Data

To enable the Board to comply with the requirements of the legislature concerning the collection of data, each public junior and senior institution of higher education shall submit such reports to the Board as may be prescribed by the Educational Data Reporting System.

Comments

Source Note: The provisions of this §1.3 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.4: Rules of Order

When formal procedures are required in a Board meeting, the meeting shall be conducted under the rules of parliamentary law as set forth in the current edition of Roberts Rules of Order.

Comments

Source Note: The provisions of this §1.4 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.5: Coordinating Board Committees

(a) The chair of the Board shall appoint committees from the Board's membership as appropriate to conduct the business of the Board and shall designate the chair and vice chair of each committee.

(b) A committee meeting may be called by the committee chair. The designated committee chair shall conduct each committee meeting.

(c) Committees will adopt recommendations on the agenda items for consideration by the Board. In the event a decision cannot be reached by a committee on any agenda item, the Board will consider that agenda item without a recommendation from the committee.

(d) Each member of the Board may participate in all committee meetings. However, only committee members may vote on committee actions.

Comments

Source Note: The provisions of this §1.5 adopted to be effective February 26, 2004, 29 TexReg 1658; amended to be effective November 29, 2007, 32 TexReg 8482

§1.6: Advisory Committees

(a) The Board may appoint advisory committees from outside the Board's membership to advise the Board as it may deem necessary, and the Commissioner may appoint advisory committees from outside the Board staff to advise the staff as the Commissioner may deem necessary.

(b) The use of advisory committees by the Board or by the Commissioner shall be in compliance with the provisions of Texas Government Code, Chapter 2110 regarding the composition and duration of committees, the reimbursement of committee member's expenses, the evaluation of committees, and the reporting to the Legislative Budget Board.

(c) An advisory committee is automatically abolished on the fourth anniversary of the date of its creation unless it has a specific duration prescribed by statute. A written statement shall be prepared by the Commissioner or his or her designee for each advisory committee setting forth the purpose of the committee, the task of the committee, the manner in which the committee will report to the Board or the Commissioner, the date on which the committee is created, and the date on which the committee will automatically be abolished. The written statements shall be maintained on file in the Board offices. At each quarterly Board meeting the Commissioner shall report to the Board any advisory committees created or abolished by effect of this rule since the previous quarterly meeting.

Comments

Source Note: The provisions of this §1.6 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.7: Petition for the Adoption of Rules

(a) An interested person by petition to the agency may request the adoption, amendment, or repeal of a rule.

(b) A petition under this section shall be in writing and shall contain:

(1) a specific reference to the agency's statutory authority to enact such a rule;

(2) the chapter and subchapter of the agency's rules in which, in the petitioner's opinion, the rule belongs;

(3) the reason that the petitioner believes the proposed rule is needed or desirable, in narrative form, with sufficient particularity to inform the board and any interested party fully of the facts upon which petitioner relies;

(4) the language that the petitioner proposes for adoption, in the exact form in which the petitioner wishes the rule or rules to be promulgated, published, or adopted;

(5) the petitioner's name, address, phone number, and signature. If the petitioner is represented by an attorney, the attorney shall give his or her bar card number, address, phone number, and fax number.

(c) The petition shall be served upon the Commissioner by personal delivery or by certified mail, with return receipt requested, or by other verifiable delivery service. A certificate evidencing service shall be included in the petition.

(d) Upon receipt of the petition for adoption of rule, the petition shall be referred to the agency's General Counsel for a determination whether the prerequisites found herein have been met.

(1) If the General Counsel finds that the petition prerequisites have been met, he or she shall refer the matter to the ADR coordinator for scheduling and reporting purposes, and to the Assistant Commissioner whose Division has jurisdiction over the subject matter of the proposed rule or rules for response. Not later than the 60th day after the date of submission of a petition under this section, the Assistant Commissioner to whom the matter was assigned shall:

(A) either:

(i) deny the petition in writing, stating its reasons for the denial; or

(ii) initiate a rulemaking proceeding under this subchapter; and

(B) report the determination to the ADR coordinator.

(2) If the General Counsel finds that prerequisites have not been met, he or she shall notify the petitioner in writing that the petition fails to meet the prerequisites herein, and the manner in which it failed.

Comments

Source Note: The provisions of this §1.7 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.8: Historically Underutilized Business (HUBs) Program

In accordance with the Government Code, §2161.003, the Board adopts by reference the rules of the Texas Building and Procurement Commission, found at Title 1 Texas Administrative Code, §§111.11 - 111.28, concerning the Historically Underutilized Business (HUB) Program. For purposes of implementing the GSC rules at the board, references to state agency or agency shall be considered to be a reference to the board.

Comments

Source Note: The provisions of this §1.8 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.9: Training for Members of Governing Boards and Board Trustees

(a) The Board shall provide training for members of institutional governing boards in accordance with provisions set forth in Texas Education Code, §61.084.

(b) The Board may prescribe an alternative training program for members of governing boards as permitted in §61.084.

(c) A registration fee will be paid by seminar participants in an amount adequate to cover the costs incurred by the Board and other state agencies in providing the program. Such amount will be determined prior to each seminar.

Comments

Source Note: The provisions of this §1.9 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.10: Administration of the Open Records Act

(a) The agency requires that all public information requests be in writing unless there are special circumstances. The Commissioner or his or her designee may determine whether a verbal request may be accepted.

(b) The person handling the request for public information shall review the request and determine what records are requested; who is requesting the records; whether inspection or actual copies of the records are requested; and whether the requested records are open, confidential, or partially open and partially confidential. The Office of General Counsel shall provide assistance in making these determinations.

(c) To the extent possible, the agency shall attempt to accommodate a requestor by providing information in the format requested. For example, if a requestor asks that information be provided on a diskette and the requested information is electronically stored, the agency will provide the information on diskette. The agency is not required to acquire software, hardware, or programming capabilities that it does not already possess to accommodate a particular kind of request except in accordance with the Open Records Act, (Texas Government Code, §552.231).

(d) Provision of a copy of public information in the requested medium must not violate the terms of any copyright agreement between the agency and a third party.

(e) Charges for public records shall be made in accordance with the rates established in the rules of the Texas Building and Procurement Commission with the following exceptions:

(1) The agency, at its discretion, may provide public information without charge or at a reduced charge if the waiver or reduction of the charge is in the public interest, because providing the copies primarily benefits the general public, or if the cost for the collection of a charge will exceed the amount of the charge.

(2) The agency may set the price for publications it publishes for public dissemination or it may disseminate them free of charge. This rule does not limit the costs of agency publications.

(f) The person handling the request for public information must have the records ready for inspection or copies duplicated within 10 business days after the date the agency received the request. If the records cannot be produced for inspection or duplication within 10 business days after the date the agency received the request, the agency shall certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available for inspection or duplication.

(1) Prior to the end of the 10 business days or the set date and hour, if applicable, the agency shall notify the requestor of the estimated costs if the costs will be over $100.

(2) The agency may require a cash deposit on requests for copies of public information which are estimated to exceed $100.

(3) All efforts shall be made to process requests as efficiently as possible so that requested information will be provided at the lowest possible charge.

(4) Full disclosure shall be made to the requesting party as to how the charges were calculated.

(5) All charges for public information must be paid to the agency before the public information is actually provided to the requestor by inspection or duplication. Failure of the requestor to pay the costs of the copies within 30 days of notification of the estimated costs, or a longer period of time, if granted by the agency, shall be considered a withdrawal of the request for information.

(6) If a request for information requires programming or manipulation of data pursuant to Texas Government Code, §552.231, the time frame in this subsection shall not apply until the requestor files the written statement described in the Texas Government Code, §552.231(d)(1) or (2). Once the written statement is filed, the agency shall comply with this subsection.

Comments

Source Note: The provisions of this §1.10 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.11: Protest Procedures for Resolving Vendor Protests Relating to Purchasing Issues

(a) Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation, evaluation, or award of a contract may formally protest to the Director of Business Services (the director). Such protests must be in writing and received in the director's office within 10 working days after such aggrieved person knows, or reasonably should have known, of the occurrence of the action which is protested, unless the director finds that good cause for delay is shown, or determines that a protest or appeal raises issues significant to the agency's procurement practices or procedures.

(b) Formal protests must conform to the requirements of this paragraph and paragraph (d) of this section, and shall be resolved in accordance with the procedure set forth in paragraphs (d) and (e) of this section. Copies of the protest must be mailed or delivered by the protestant to the other interested parties. For the purposes of this section, "interested parties" are all vendors who have submitted bids or proposals for the contract involved. Names and addresses of all interested parties may be obtained by sending a written request for this information to the director.

(c) In the event of a timely protest or appeal under this section, the agency shall not proceed further with the solicitation or with the award of the contract unless the director makes a written determination that the expeditious award of contract is necessary to protect substantial interests of the state. A copy of this determination shall be mailed to the protestant.

(d) A formal protest petition must be sworn and must contain:

(1) a specific identification of the statutory or regulatory provision(s) that the action complained of is alleged to have violated;

(2) a specific description of each act alleged to have violated the statutory or regulatory provision(s) identified in paragraph (1) of this section;

(3) a precise statement of the relevant facts;

(4) an identification of the issue or issues to be resolved;

(5) argument and authorities in support of the protest; and

(6) a statement that copies of the protest have been mailed or delivered to the other interested parties.

(e) The director shall have the authority to settle and resolve the dispute concerning the solicitation or award of a contract. The director may solicit written responses to the protest petition from other interested parties, and if he or she makes such a request, the protestant shall be given notice of the director's request and of any written responses to the request that the director receives. The director may consult with the Texas Building and Procurement Commission and the office of the General Counsel of the Board concerning the dispute.

(f) If the protest is not resolved by mutual agreement, the director shall issue a written determination on the protest.

(1) If the director determines that no violation of rules or statutes has occurred, he or she shall inform the protestant and other interested parties by a letter that sets forth the reasons for the determination.

(2) If the director determines that a violation of the rules or statutes has occurred in a case where a contract has not been awarded, he shall inform the protestant and other interested parties by a letter that sets forth the reasons for the determination and the remedial action that he or she has determined is appropriate.

(3) If the director determines that a violation of the rules or statutes has occurred in a case where a contract has been awarded, he shall inform the protestant and other interested parties by a letter which sets forth the reasons for the determination. In such a case, the director has the authority to declare the contract void. If he or she declares the contract void, this fact shall be included in the determination letter.

(g) The director's determination on a protest may be appealed by an interested party to the Assistant Commissioner for Administrative Services. An appeal of the director's determination must be in writing and must be received in the Assistant Commissioner for Administrative Services' office no later than 10 working days after the date of the director's determination. An appeal of the determination shall be limited to those issues raised in the protest petition and the determination letter. Copies of the appeal must be mailed or delivered by the appealing party to the other interested parties and must contain a sworn statement that such copies have been provided.

(h) The Assistant Commissioner for Administrative Services shall review the protest petition, the director's requests for input, and any written responses previously received from other interested parties, the determination, and the appeal, and shall issue a written decision on the protest.

(i) A decision issued in writing by the Assistant Commissioner for Administrative Services shall be the final administrative action of the agency.

Comments

Source Note: The provisions of this §1.11 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.12: Foreign Travel

Appropriated funds may not be used to pay expenses for a trip to foreign countries, except for Canada and Mexico, unless the Board has approved the travel before departure. The Board delegates the authority to approve foreign travel to the Commissioner of Higher Education. The Commissioner shall report annually to the Governor's Office of Budget and Planning and the Legislative Budget Board on all foreign travel and the required approvals.

Comments

Source Note: The provisions of this §1.12 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.13: Internal Auditor

(a) The Board shall appoint an internal auditor.

(b) The internal auditor shall report directly to the Board on all matters except for those administrative matters that require the decision of the Commissioner.

(c) The Board shall receive the advice and counsel of the Commissioner regarding matters of termination, discipline, transfer, or reclassification or changes in powers, duties or responsibilities of the internal auditor.

(d) The internal auditor shall develop an annual audit plan, conduct audits as specified in the audit plan and document deviations, and discuss audit reports with the Administration and Financial Planning Committee of the Board.

(e) The internal auditor shall provide all audit reports directly to the Board.

Comments

Source Note: The provisions of this §1.13 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.14: Negotiated Rulemaking

(a) The Board encourages negotiated rulemaking whenever appropriate. Rulemaking may be negotiated informally, in the manner that has been established by this agency, or it may be negotiated formally, in accordance with the procedures established in the Texas Government Code, at Chapter 2008.

(b) If the Assistant Commissioner whose Division has jurisdiction over the subject matter of the rule or rules to be adopted concludes that the agency may benefit from formal negotiated rulemaking, he or she shall request that the agency's ADR coordinator assist in determining whether it is advisable to proceed under the procedures established in Chapter 2008 of the Texas Government Code. If the ADR coordinator concludes that formal rulemaking is not advisable, the agency may nonetheless engage in informal negotiated rulemaking.

Comments

Source Note: The provisions of this §1.14 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.15: Authority of the Commissioner to Propose Board Rules

The Board authorizes the Commissioner to approve proposed Board rules for publication in the Texas Register. The Commissioner may refer proposed rules for consideration by Coordinating Board committees established pursuant to §1.5 of this title (relating to Coordinating Board Committees) or for consideration by the Board.

Comments

Source Note: The provisions of this §1.15 adopted to be effective May 12, 2005, 30 TexReg 2660

§1.16: Contracts for Materials and Services

(a) The Board shall approve all requests for the purchase of materials or services if the cost for those materials or services is expected to exceed $750,000. After a vendor is selected, a majority of the Chair and Vice Chair of the Board and the Chair of the responsible Board committee shall provide final approval of the contract with the selected vendor.

(b) The Board committee to which an item is assigned shall approve all requests relating to that item for the purchase of materials or services if the cost for those materials or services is greater than $100,000 but less than or equal to $750,000. After a vendor is selected, a majority of the Chair and Vice Chair of the Board and the Chair of the responsible Board committee shall provide final approval of the contract with the selected vendor.

(c) The Commissioner or the Deputy Commissioner for Business and Finance/Chief Operating Officer shall approve all contracts for the purchase of materials or services if the contract amount is less than or equal to $100,000. The Commissioner may delegate his approval authority to a deputy, associate, or assistant commissioner if:

(1) The contract amount is less than or equal to $5,000; or

(2) The Commissioner and the Deputy Commissioner for Business and Finance/Chief Operating Officer will be away from the agency and unavailable to approve contracts for more than one business day.

(d) The Commissioner shall provide a report to the Board, at least quarterly, describing all contracts for the purchase of materials or services.

(e) The Chair and Vice Chair of the Board shall have the authority to approve emergency purchase requests and contracts for materials or services over $100,000 that must be entered into in order to prevent a hazard to life, health, safety, welfare, property or to avoid undue additional cost to the state. Emergency purchase requests and contracts shall be exempt from subsections (a) and (b) of this section.

(f) In the event that the agency is required by statute to enter into a contract for the purchase of materials or services with a value of over $100,000, including the awarding of grants, approval of such a request or contract by the Board or a Board committee pursuant to subsection (a) or (b) of this section, as appropriate, shall not be required when such an award involves no discretion by the Board or agency staff. The Commissioner shall approve such contracts and report them to the Board at the next quarterly Board meeting following the approval.

(g) In the event that a contract for a given amount has been approved by either the Board or a Board committee, as applicable, and circumstances alter such that the expenditure necessary under the contract increases by not more than ten per cent, the Commissioner or the Deputy Commissioner for Business and Finance/Chief Operating Officer may approve such an increase. Should the increase in expenditure exceed ten per cent, the contract must be resubmitted for approval by the Board or the responsible Board committee, as appropriate.

(h) In the event that the Board or a Board committee, as applicable, has approved the issuance of a request for the purchase of materials or services that will result in the letting of contracts, including grants, to multiple vendors or providers of services, any resulting contract which by itself shall have a cost greater than $100,000 must be approved by a majority of the Chair and Vice Chair of the Board and the Chair of the responsible Board committee. The Commissioner or the Deputy Commissioner for Business and Finance/Chief Operating Officer, in accordance with subsection (c) of this section, shall provide final approval of contracts with the selected vendors or providers of services if the contract amount is less than or equal to $100,000.

Comments

Source Note: The provisions of this §1.16 adopted to be effective August 15, 2006, 31 TexReg 6325; amended to be effective February 18, 2007, 32 TexReg 525; amended to be effective November 29, 2007, 32 TexReg 8482; amended to be effective February 28, 2008, 33 TexReg 1526; amended to be effective November 18, 2008, 33 TexReg 9228; amended to be effective August 26, 2009, 34 TexReg 5675; amended to be effective December 3, 2009, 34 TexReg 8505

§1.17: Authority of the Commissioner to Provide Direct Supervision of the Education Research Centers

The Board authorizes the Commissioner to provide direct supervision of the Education Research Centers created by Texas Education Code §1.005.

Comments

Source Note: The provisions of this §1.17 adopted to be effective February 18, 2007, 32 TexReg 526

§1.18: Operation of Education Research Centers

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) FERPA means the Family Educational Rights and Privacy Act, 42 U.S.C. 1232g, including regulations and informal written guidance issued by the United States Department of Education and any amendments or supplementation thereof.

(2) Confidential information as applied to data provided to an Education Research Center (ERC) by Texas Education Agency (TEA) or the Texas Higher Education Coordinating Board (CB) includes all student-level data, including any data cells small enough to allow identification of an individual student. All social security numbers, student names, student birthdates and data cells containing between one and four students, inclusive, are confidential.

(3) Small data cells will be considered any cell containing between one and four students inclusive. Information may not be disclosed where small data cells can be determined through subtraction or other simple mathematical manipulations or subsequent cross-tabulation of the same data with other variables. Institutions may use any of the common methods for masking including:

(A) hiding the small cell and the next larger cell on the row and column so the size of the small cell can not be determined; or

(B) hiding the small cell and displaying the total for both the row and column as a range of at least ten; or

(C) any methodology approved by the TEA and CB.

(4) References to the CB shall also be deemed to include the Commissioner of Higher Education. References to the TEA shall also be deemed to include the Commissioner of Education.

(b) Purpose.

(1) ERCs may be established by joint approval of the commissioner of education and the CB. An ERC may only be established at a sponsoring public institution of higher education in Texas, but may be awarded to a consortium of such institutions. An ERC must be physically located within Texas and must retain all data at that location, except for secure off-site data back-up in accordance with written procedures approved by the Joint Advisory Board. Student level data may not be provided to a researcher at a location other than a Research Center or the THECB or a public institution of higher education located in Texas that is an acknowledged consortium member of the Research Center.

(2) The CB is responsible for general oversight, technical assistance and state support of ERCs, except as otherwise provided in this chapter. All policy decisions and rulemaking shall be jointly approved by TEA and the CB.

(3) Sponsoring institutions of higher education are responsible for all equipment, salaries and other operating costs of an ERC, including staff and equipment at TEA and the CB necessary to prepare and maintain data for the ERCs, as well as reasonable reimbursable expenses of the joint advisory board. Costs will be limited to one full-time equivalent employee at each agency along with associated data storage costs as set by DIR for the data center consolidation rates unless otherwise agreed to by the TEA, CB, and the ERCs.

(c) Joint Advisory Board.

(1) The commissioner of education and the commissioner of higher education shall co-chair an advisory board to review and approve research involving access to confidential information and to adopt policies governing ERC operations. Each commissioner may delegate to an agency employee the ability to act as co-chair and vote on matters coming before the Joint Advisory Board.

(2) The commissioner of education and the commissioner of higher education shall jointly appoint up to ten additional members to the Joint Advisory Board. All research involving access to confidential information must be approved by the said board.

(3) Members of the Joint Advisory Board serve at the pleasure of the commissioner of education and the commissioner of higher education and must be reappointed annually. The Joint Advisory Board will post its agenda and conduct its meetings in compliance with the Texas Open Meetings Act.

(4) The Joint Advisory Board shall meet at the call of the two chairs at least twice each year.

(d) Operation.

(1) An ERC may operate only under written authorization by the commissioner of education and the CB. Status as an ERC may not be assigned, delegated or transferred to any other entity.

(2) An ERC shall be lead by a managing director who is a professional employee of the sponsoring institution of higher education (IHE). The managing director shall report directly to the chief operating officer of the sponsoring IHE unless a different reporting structure is approved by TEA and the CB.

(3) All research at an ERC involving access to confidential information shall be conducted only with the approval of and under the joint oversight of TEA and the CB through the Joint Advisory Board. Research that does not involve access to confidential information may be conducted by the ERCs without approval of the Joint Advisory Board upon 30 days notice to TEA and the CB and certification by the ERC that sufficient resources will be available to meet all demands for resources to conduct research or manipulate data under the direction of the Joint Advisory Board or on behalf of TEA or the CB.

(4) Confidential information provided to an ERC by TEA or the CB shall be protected by procedures to ensure that any unique identifying number is not traceable to any individual. Such procedures must be maintained as confidential by TEA and the CB and may not be shared with an ERC, or used for any other purpose. Under no circumstances may social security numbers, names, or birthdates be accessed for the purpose of research at an ERC.

(5) ERCs shall adopt written procedures for research conducted using confidential information, subject to approval by the Joint Advisory Board. An ERC may not access confidential information until all such procedures are approved. Such procedures shall include:

(A) measures to ensure against unauthorized disclosure of confidential information;

(B) independent review of all research products by a designated ERC staff person not involved in that specific project to ensure against unauthorized disclosure of confidential information;

(C) review of all datasets created by a researcher to ensure that confidential information is not copied or removed from the ERC;

(D) annual certification of full compliance with all requirements of state and federal laws and regulations regarding the use of confidential information for research purposes by the internal auditor of each participating IHE;

(E) approval of research design by an accredited IHE, including any applicable requirements for research involving human subjects, before submitting a research proposal to the Joint Advisory Board for approval; and

(F) criteria for allocating research access capacity for researchers not affiliated with the sponsoring IHEs.

(6) All research produced at an ERC shall:

(A) be made available upon request to TEA and the CB;

(B) be available for public distribution, copying or reproduction at no cost to TEA or the CB;

(C) contain a disclaimer in a form acceptable to TEA and the CB stating that the conclusions of the research do not necessarily reflect the opinion or official position of those entities or of the State of Texas;

(D) be reviewed before publication or other distribution by individuals other than those conducting the research to ensure that confidential information is not disclosed, in accordance with guidelines adopted under FERPA or by TEA or the CB;

(7) An ERC shall comply with the requirements of the Texas Public Information Act, including requirements relating to data manipulation. An ERC shall process any Public Information Act requests referred by TEA or the CB in a timely manner. Charges for processing Public Information Act requests shall be based on guidelines developed by the Texas Attorney General's Office and approved by the Joint Advisory Board.

(8) A sponsoring IHE shall cooperate fully with all audit requests made by TEA or the CB. Each ERC shall annually request and undergo a security audit performed by the Texas Department of Information Resources, or a contractor approved by that Department, which shall include a penetration test of computer equipment and access.

(9) Research projects that require access to data not then included in the database maintained by the CB for research will be provided by the CB or the TEA if available. An ERC will be charged the cost to process or manipulate such data. ERCs will be assessed for annual maintenance costs of the CB and the TEA as approved by the Joint Advisory Board.

(e) Sanctions and Termination.

(1) Upon a determination that confidential information has been released or has been copied to another location, or that appropriate security measures are not in place to protect confidential information, the Joint Advisory Board may require an ERC to obtain appropriate services or equipment or to remove confidential information from such other location in order to remedy a security deficit. Such services or equipment shall be purchased by the ERC from vendors subject to approval of the Joint Advisory Board.

(2) An ERC may be terminated by joint action of TEA and the CB for failure to meet the requirements of state or federal law, of this subchapter, or of the terms of a contract establishing the ERC. An ERC shall be entitled to an informal review of a determination to terminate its status by a designee of the commissioner of education and the commissioner of higher education prior to the effective date of the termination.

(3) Notice of termination under paragraph (1) and (2) of this subsection shall be provided to the ERC's designated representative and shall contain information regarding the reasons for the termination.

(4) A termination made pursuant to this section shall become final and binding unless, within 30 days of its receipt of the notice of termination, the ERC invokes the administrative remedies contained in Chapter 1, subchapter B of the Rules of the CB (relating to Hearings and Appeals).

(5) Any ultimate recommendation regarding termination shall be made to both the CB and the commissioner of education. The CB and the commissioner of education must concur for any termination of an ERC invoking such administrative remedies to become final.

(f) Security.

(1) An ERC must comply with all requirements of FERPA in accessing confidential information to conduct research. Notwithstanding any other provision in this subchapter, failure to maintain adequate security to avoid the unauthorized disclosure of confidential information provided to the ERC shall be grounds for immediate termination of the authorization to access such data.

(2) All physical locations at which confidential information may be accessed at an ERC must be located within Texas, at a sponsoring IHE, and approved by both TEA and the CB. Each ERC may provide for off-site data back up of information for disaster recovery purposes in accordance with DIR processes. No research can be performed at a back up site.

(3) Either TEA or the CB may suspend access to confidential information provided to an ERC based on a significant risk of unauthorized disclosure of confidential information.

Comments

Source Note: The provisions of this §1.18 adopted to be effective August 15, 2007, 32 TexReg 4968; amended to be effective February 18, 2008, 33 TexReg 1324

§1.19: Education and Training of Board Administrators and Employees

The Texas Higher Education Coordinating Board values its administrators and employees and encourages lifelong learning and professional development through education and training pursuant to the State Employees Training Act, Texas Government Code §§656.041 - 656.104 and successor sections. The eligibility of the agency's administrators and employees for training and education provided by the agency, and the obligations, including restrictions and potential liability, assumed by administrators and employees on receiving such training and education, shall be as set forth in the Board's policies.

Comments

Source Note: The provisions of this §1.19 adopted to be effective August 26, 2009, 34 TexReg 5675

Subchapter B

§1.20: Definitions

The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise.

(1) Administrative Law Judge (ALJ)--The person appointed by the State Office of Administrative Hearings (SOAH) to hear a contested case and to propose findings of fact and conclusions of law, under §2003.041 of the Texas Government Code, for adoption by the Board, regarding a determination that has been made by the Commissioner with which the party disagrees.

(2) ADR--Alternative dispute resolution. A nonjudicial, informally conducted forum for the voluntary settlement of contested matters through the intervention of an impartial third party.

(3) Alternative dispute resolution coordinator or ADR coordinator--The agency employee appointed by the Commissioner to coordinate and oversee ADR procedures and mediators.

(4) Board--The Texas Higher Education Coordinating Board; as used in this subchapter, "Board" means the agency acting through its voting members in a decision-making capacity.

(5) Commissioner--The Commissioner of Higher Education; as used in this subchapter, "Commissioner" means the agency acting through its executive, and his or her designees, staff, or agents, as distinguished from the agency acting through Board members in a decision-making capacity.

(6) Contested Case--A circumstance in which the Board or Commissioner shall allow a full evidentiary hearing as provided under the APA and this subchapter, if the right is properly invoked. In such a case, the Board shall finally determine the rights, duties, or privileges of the party. Right to a hearing is established only by explicit statutory provisions or by rules found in Title 19 of the Texas Administrative Code. There is no statute in the Texas Education Code, or rule herein, which requires the Commissioner to initiate a contested case hearing in the absence of a written petition for same, as defined herein.

(7) Contested Case Status--The condition that is established by a person who has a right to a contested case hearing, by the filing of a properly pled petition.

(8) Mail or mailed--Deposit(ed) into United States mail, certified, return receipt requested, unless otherwise provided by this subchapter. In determining the timeliness of a pleading, a postmark shall be evidence of the date of mailing, and the markings on a green card or on certified mail shall be evidence of the date of receipt. Certified mail that is refused or not claimed shall be considered received upon the earliest date of notice. When a document has been placed into United States mail, certified, return receipt requested, it shall be assumed that it was received on the third day after it was mailed, in the absence of a showing otherwise.

(9) Mediator--The person appointed by the Board's ADR coordinator to preside over an ADR proceeding, regardless of which ADR method is used.

(10) Participant--When used in relation to ADR, the Commissioner, the Board's counsel, a respondent in a contested case, and his or her attorney; or if parties have been named, the named parties.

(11) Party--Each person or agency named or admitted as a party to a hearing.

(12) Private mediator--A person in the profession of mediation who is not a Texas state employee and who has met all the qualifications prescribed by Texas law for mediators

(13) SOAH--The State Office of Administrative Hearings

Comments

Source Note: The provisions of this §1.20 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.21: Scope and Purpose

(a) This subchapter, along with applicable provisions of the Administrative Procedure Act (Chapter 2001.051-2001.902 of the Texas Government Code), the Negotiated Rulemaking Act (Tex. Gov't Code, ch. 2008), the Governmental Dispute Resolution Act, (Tex. Gov't Code, ch. 2009), Texas Government Code, Chapter 2260, and the contested case hearings rules promulgated by the State Office of Administrative Hearings (1 TAC Chapter 155), shall govern all proceedings to which a party has been given a right to a hearing by statute or by Board rules.

(b) The purpose of this subchapter is:

(1) to encourage the resolution and early settlement of rulemaking and contract disputes, and contested cases through voluntary settlement procedures, and;

(2) to establish clear procedures for the administration of all contested matters that may come before the Board.

Comments

Source Note: The provisions of this §1.21 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.22: Appointment of Adr Coordinator

(a) The Commissioner shall appoint an ADR coordinator as soon as practicable following:

(1) initial adoption of this subchapter, or

(2) an ADR coordinator's vacation of the office.

(b) The ADR coordinator shall, as soon as practicable after appointment, complete the minimum training standards set forth in §154.052 of the Texas Alternative Dispute Resolution Procedures Act, Tex. Civ. Stat. and Rem. Code.

(c) The ADR coordinator shall have the responsibility:

(1) to maintain necessary agency records while maintaining the confidentiality of participants;

(2) to establish a method of choosing mediators who possess the minimum qualifications described in TADR Act, §154.052;

(3) to require mediators to adhere to a particular standard of conduct or code of ethics;

(4) to provide information about available ADR processes to agency employees, and to both potential and current users of the ADR program;

(5) to arrange training or education that may be necessary to implement adopted ADR processes; and

(6) to establish a system to evaluate the ADR program and the mediators or other facilitators that the agency has used.

Comments

Source Note: The provisions of this §1.22 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.23: Deadlines for Filing a Petition for Contested Case Status

(a) At any time, the Commissioner may request that a matter within the jurisdiction of the agency, which by statute or rule entitles a person to a hearing, be given contested case status.

(b) If, in any matter in which the Texas Education Code or the rules herein give a party the right to a hearing, the Commissioner makes a determination, decision, order, ruling, or if he or she fails to act within a prescribed period of time, a party with standing in the matter shall file a written petition for contested case status with the Commissioner within the time frames below, or the action taken by the Commissioner will become final, and the party will have failed to exhaust all available administrative remedies, as established herein:

(1) in a contract dispute, no later than 180 days after the date of the event that the contractor asserts as the basis of the claim;

(2) for all other types of contested cases, 45 calendar days after the decision, order, ruling, or failure to act that is complained of is rendered.

Comments

Source Note: The provisions of this §1.23 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.24: Mandatory Contents of a Petition for Contested Case Status

(a) A petition for contested case status in any matter in which statutes or rules give a party the right to a hearing, shall contain the following:

(1) For a contract dispute:

(A) an explanation of the nature of the alleged breach of contract, including the date of the event that the contractor asserts as the basis of the claim, and each contractual provision allegedly breached;

(B) a description of damages that resulted from the alleged breach, including the amount and method used to calculate those damages; and

(C) the legal theory of recovery, i.e., breach of contract, including the causal relationship between the alleged breach and the damages claimed.

(D) In addition to the mandatory contents of the notice of claim as required herein, the contractor may submit supporting documentation or other tangible evidence to facilitate the agency's evaluation of the contractor's claim.

(E) The following types of contracts shall not be subject to the provisions herein. A petition for contested case status in a contract dispute must contain sufficient identification of the parties and the nature of the dispute to allow the agency to determine that the basis of the claim is not an action of the Board for which the contractor is entitled to a specific remedy pursuant to state or federal constitution or statute, or that the dispute is regarding a contract:

(i) between the Board and the federal government or its agencies, another state or another nation;

(ii) between the Board and two or more units of state government;

(iii) between the Board and a local governmental body, or a political subdivision of another state;

(iv) between a subcontractor and a contractor;

(v) subject to §201.112 of the Transportation Code;

(vi) within the exclusive jurisdiction of state or local regulatory bodies;

(vii) within the exclusive jurisdiction of federal courts or regulatory bodies; or

(2) The petition must contain the signature of the contractor or the contractor's authorized representative.

(b) In all types of contested cases other than contract disputes:

(1) a description of the determination, decision, order, ruling, or failure to act that is being complained of;

(2) the date of the determination, decision, order, ruling, or failure to act;

(3) a statement of the facts of which petitioner is aware and which he or she believes to be true, that would lead to a reasonable conclusion that petitioner is entitled to the relief sought;

(4) the specific statute or rule which the petitioner believes entitles him or her to request a contested case status;

(5) a description of the action that the petitioner wants the Board to take on the petitioner's behalf; and

(6) the signature of the petitioner, or the petitioner's authorized representative.

(7) Nothing in this section requires that the petitioner plead in his or her petition all evidence that he or she may rely upon in a formal contested case hearing. However, all issues that the petitioner intends to raise in a formal contested case hearing must be sufficiently pled in the petition to put the respondent on notice of the nature of the complaint.

Comments

Source Note: The provisions of this §1.24 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.25: Service of a Petition for Contested Case Status

Petitions for contested case status shall be served upon the officer stated herein, by personal delivery or by certified mail, with return receipt requested, or by other verifiable delivery service. A certificate evidencing service shall be included in the petition.

(1) For contract disputes, the petition shall be served upon the officer of the Board designated in the contract to receive a notice of claim of breach of contract under the Government Code, Chapter 2260; if no person is designated in the contract, the notice shall be delivered to the Assistant Commissioner for Administration;

(2) For all types of contested cases other than contract disputes, the petition shall be served upon the Commissioner.

Comments

Source Note: The provisions of this §1.25 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.26: Agency Determination Regarding Contested Case Status

All petitions for contested case status shall be reviewed by the Board's General Counsel.

(1) If the General Counsel finds that the prerequisites found herein have been met, he or she shall notify the petitioner that he or she has established the right to a contested case.

(2) If the petition concerns an alleged breach of contract, the General Counsel, after consulting with appropriate officers of the agency and with the Commissioner, shall determine whether a sufficient basis exists for a counterclaim, and if it is determined that it is in the best interest of the agency to file a counterclaim, shall assist in drafting the notice of counterclaim, which shall comply with the deadlines, content, and notice requirements found in §1.42 of this title (relating to Board Counterclaims).

(3) If the General Counsel finds that prerequisites have not been met, he or she shall refer the petition to the Assistant Commissioner whose division has jurisdiction over the issue or claim. The Assistant Commissioner shall either seek clarification from the petitioner to enable the Assistant Commissioner to conclude that the petition is substantially complete, or shall notify the petitioner in writing that the petition fails to state properly a claim that entitles the petitioner a right to a hearing, and the manner in which it failed. The petitioner shall perfect the pleading no later than the later of the following:

(A) the deadline specified in §1.23 of this title (relating to Deadlines for Filing a Petition for Contested Case Status); or

(B) 15 days after the receipt of notice that the pleading fails to state properly a claim that entitles the petitioner a right to a hearing.

Comments

Source Note: The provisions of this §1.26 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.27: Referral to Adr Coordinator

(a) Contract disputes shall be referred to the agency's ADR coordinator to establish the negotiations schedule and to determine, in collaboration with the person designated pursuant to §1.25, (relating to Service of a Petition for Contested Case Status), all interested parties to the negotiations;

(b) If a petitioner in any other type of contested case requests ADR, the case shall be referred to the agency's ADR coordinator.

(c) The Commissioner may refer any other contested case to the ADR coordinator at his or her own instance.

Comments

Source Note: The provisions of this §1.27 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.30: General Principles of Alternative Dispute Resolution

The following principles shall apply in Alternative Dispute Resolution (ADR) implemented for contested cases:

(1) Any resolution reached as a result of the ADR procedure should be through the voluntary agreement of the parties.

(2) ADR procedures shall be consistent with the Tex. Gov't Code, ch. 2009; Tex. Gov't Code, ch. 2008, Tex. Civil Practices and Remedies Code, ch. 154; and the Administrative Procedures Act, (the APA), Texas Gov't Code, ch. 2001.

(3) ADR procedures herein are intended to supplement and not to limit other dispute resolution procedures available for use by a governmental body.

(4) ADR processes shall not be applied in a manner that denies a person a right granted under state or federal law or under a local charter, ordinance, or other similar provision, including any right to an administrative or judicial hearing that is allowed or mandated by the Texas Education Code or by laws of more general application.

(5) The agency's ADR coordinator may appoint a governmental officer, an agency employee, a qualified mediator who is an employee of another governmental entity, or a qualified private mediator for an ADR procedure.

(6) Mediators:

(A) shall be qualified as required by Tex. Civil Practices and Remedies Code §154.052,

(B) are subject to the standards and duties described in Tex. Civil Practices and Remedies Code §154.053,

(C) have the qualified immunity described in the Tex. Civil Practices and Remedies Code §154.055,

(D) shall maintain confidentiality as described in Tex. Civil Practices and Remedies Code §154.073 and Tex. Gov't Code §2009.054, and

(E) shall not testify in proceedings relating to or arising out of the matter in dispute.

(7) The parties have the right to object to the person appointed to serve as the mediator.

(8) No one may dictate the terms of the agreement reached by the participants as long as the resolution is legal and complies with any rules set up for the process, including the rules set forth herein.

(9) Oral and written communications between the parties, and between the parties and the mediator, related to the ADR process are confidential and may not be disclosed unless all the parties consent to the disclosure, or upon issuance of an opinion from the Office of the Attorney General that the evidence is subject to the Open Records Act.. This includes any description of the conduct and demeanor of participants. Any notes or records made in an ADR procedure are confidential. The mediator may not, directly or indirectly, communicate with the judge or any commissioner, on any aspect of ADR negotiations made confidential by this section. If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be determined by a judge who is hearing a related matter to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order or whether the communications or materials are subject to disclosure.

(10) A final written agreement to which the Board is a signatory is subject to required disclosure, is excepted from disclosure, or is confidential, as provided by the TADR Act §154.073 and other laws, including Tex. Gov't Code, ch. 552, and Tex. Gov't Code §2009.054(b).

Comments

Source Note: The provisions of this §1.30 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.32: Selection of a Neutral Third Party

(a) For each matter referred for ADR procedures, the ADR coordinator may select a neutral third party to facilitate the proceeding. The ADR coordinator may assign a substitute or additional neutral third party to a proceeding as he or she deems necessary.

(b) If all the participants agree upon the use of a private mediator, a private mediator may be hired for agency ADR procedures provided that:

(1) the participants unanimously agree to the selection of the person to serve as the mediator;

(2) the mediator agrees to be subject to the direction of the commission's ADR coordinator and to all time limits imposed by the coordinator, the ALJ, if applicable, and all statutes or regulations that apply;

(3) the participants unanimously agree upon the manner in which costs for the services of the mediator will be apportioned among the participants;

(4) fees shall be paid directly to the mediator.

(5) All mediators in Board mediation proceedings shall subscribe to the ethical guidelines for mediators adopted by the ADR Section of the State Bar of Texas.

(c) SOAH mediators, employees of other governmental bodies who are trained mediators, and private pro bono mediators may be assigned to contested cases as needed, provided that:

(1) each mediator shall first have received 40 hours of training as prescribed by Texas law.

(2) each mediator shall have some expertise in the area of the contested matter.

(3) if the mediator is an ALJ at SOAH, that person may not also sit as the judge for the case if the contested case goes to a formal contested case hearing.

Comments

Source Note: The provisions of this §1.32 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.33: Developing Mediators within the Agency

To the extent practicable, the Board shall establish a pool of staff mediators to resolve contested cases through ADR procedures.

(1) Each staff mediator shall receive 40 hours of formal training in ADR procedures through programs approved by the ADR coordinator, and shall be qualified as required by the TADR Act §154.052 before being allowed to facilitate a mediation to which any governmental entity is a party.

(2) Each staff mediator shall subscribe to the ethical guidelines for mediators adopted by the ADR Section of the State Bar of Texas.

(3) Other individuals may assist with mediation on an ad hoc basis in light of particular skills or experience that will facilitate the resolution of individual contested matters.

Comments

Source Note: The provisions of this §1.33 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.34: Negotiated Settlements Must be in Writing

Agreements of the participants reached as a result of ADR must be in writing, and are enforceable in the same manner as any other written contract.

Comments

Source Note: The provisions of this §1.34 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.35: Partial Settlements through Adr

When ADR procedures do not result in the full settlement of a contested case, the participants, in conjunction with the mediator, shall limit the contested issues through the entry of written stipulations. Such stipulations shall be forwarded or formally presented to the ALJ who is assigned to conduct the hearing on the merits and shall be included in the hearing record.

Comments

Source Note: The provisions of this §1.35 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.40: Agency Management of Contract Disputes

(a) The procedures contained in this subchapter in relation to contract disputes are exclusive and required prerequisites to suit under the Civil Practice & Remedies Code, Chapter 107, and the Government Code, Chapter 2260.

(b) This subchapter does not waive the Board's sovereign immunity to suit or liability.

Comments

Source Note: The provisions of this §1.40 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.41: Definitions

The following words and terms, when used in relation to contract disputes, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Claim--A demand for damages by the contractor based upon the Board's alleged breach of the contract.

(2) Contract--A written contract between the Board and a contractor by the terms of which the contractor agrees either:

(A) to provide goods or services, by sale or lease, to or for the Board; or

(B) to perform a project as defined by Government Code, §2166.001.

(3) Contractor--Independent contractor who has entered into a contract directly with the Board. The term does not include:

(A) The contractor's subcontractor, officer, employee, agent or other person furnishing goods or services to a contractor;

(B) An employee of the Board; or

(C) A student at an institution of higher education.

(4) Counterclaim--A demand by the Board based upon the contractor's claim.

(5) Day--A calendar day. If an act is required to occur on a day falling on a Saturday, Sunday, or holiday, the first working day that is not one of these days should be counted as the required day for purpose of this act.

(6) Event--An act or omission or a series of acts or omissions giving rise to a claim. The following list contains illustrative examples of events, subject to the specific terms of the contract:

(A) Examples of events in the context of a contract for goods or services:

(i) the failure of the Board to timely pay for goods and services;

(ii) the failure to pay the balance due and owing on the contract price, including orders for additional work, after deducting any amount owed the Board for work not performed under the contract or in substantial compliance with the contract terms;

(iii) the suspension, cancellation, or termination of the contract;

(iv) final rejection of the goods or services tendered by the contractor, in whole or in part;

(v) repudiation of the entire contract prior to or at the outset of performance by the contractor;

(vi) withholding liquidated damages from final payment to the contractor.

(B) Examples of events in the context of a project:

(i) the failure to timely pay the unpaid balance of the contract price following final acceptance of the project;

(ii) the failure to make timely progress payments required by the contract;

(iii) the failure to pay the balance due and owing on the contract price, including orders for additional work, after deducting any amount owed the Board for work not performed under the contract or in substantial compliance with the contract terms;

(iv) the failure to grant time extensions to which the contractor is entitled under the terms of the contract;

(v) the failure to compensate the contractor for occurrences for which the contract provides a remedy;

(vi) suspension, cancellation or termination of the contract;

(vii) rejection by the Board, in whole or in part, of the "work", as defined by the contract, tendered by the contractor;

(viii) repudiation of the entire contract prior to or at the outset of performance by the contractor;

(ix) withholding liquidated damages from final payment to the contractor;

(x) refusal, in whole or in part, of a written request made by the contractor in strict accordance with the contract to adjust the contract price, the contract time, or the scope of work.

(C) The lists in Subparagraph (A) and (B) of this paragraph herein should not be considered exhaustive but are merely illustrative in nature.

(7) Goods--Supplies, materials or equipment.

(8) Project--As defined in Government Code §2166.001, a building construction project that is financed wholly or partly by a specific appropriation, bond issue or federal money, including the construction of:

(A) a building, structure, or appurtenant facility or utility, including the acquisition and installation of original equipment and original furnishing; and

(B) an addition to, or alteration, modification, rehabilitation or repair of an existing building, structure, or appurtenant facility or utility.

(9) Services--The furnishing of skilled or unskilled labor or consulting or professional work, or a combination thereof, excluding the labor of an employee of the Board.

Comments

Source Note: The provisions of this §1.41 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.42: Board Counterclaims

(a) If the agency asserts a counterclaim under the Government Code, Chapter 2260, notice of the counterclaim shall be filed as provided by this section.

(b) The notice of counterclaim shall:

(1) be in writing;

(2) be delivered by hand, certified mail return receipt requested or other verifiable delivery service to the contractor or representative of the contractor who signed the petition for contested case status; and

(3) state in detail:

(A) the nature of the counterclaim;

(B) a description of damages or offsets sought, including the amount and method used to calculate those damages or offsets; and

(C) the legal theory supporting the counterclaim.

(c) The agency may submit supporting documentation or other tangible evidence to facilitate the contractor's evaluation of the agency's counterclaim.

(d) The notice of counterclaim shall be delivered to the contractor no later than 90 days after the agency's receipt of the contractor's petition for contested case status.

(e) Nothing herein precludes the Board from initiating a lawsuit for damages against the contractor in a court of competent jurisdiction.

Comments

Source Note: The provisions of this §1.42 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.43: Request for Voluntary Disclosure of Additional Information

(a) Upon the filing of a claim or counterclaim, the parties may request to review and copy, without limitation, the following information that may be in the possession or custody, or that is subject to the control of the other party, and that pertains to the contract claimed to have been breached, regardless of the manner in which the information is recorded, including paper and electronic media:

(1) accounting records;

(2) correspondence, including, without limitation, correspondence between the Board and outside consultants it utilized in preparing its bid solicitation or any part thereof or in administering the contract, and correspondence between the contractor and its subcontractors, materialmen, and vendors;

(3) schedules;

(4) the parties' internal memoranda; and

(5) documents created by the contractor in preparing its offer to the Board and documents created by the Board in analyzing the offers it received in response to a solicitation.

(b) The contractor and the agency may seek additional information directly from third parties, including, without limitation, third-party consultants, and the contractor's subcontractors.

(c) Nothing in this section requires any party to disclose the requested information or any matter that is privileged under Texas law. Material submitted pursuant to this subsection and claimed to be confidential by the contractor shall be handled pursuant to the requirements of the Public Information Act.

(d) Material submitted pursuant to this subsection and claimed to be confidential by the contractor shall be handled pursuant to the requirements of the Public Information Act.

Comments

Source Note: The provisions of this §1.43 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.44: Duty to Negotiate

The parties shall negotiate in accordance with the timetable set forth in §1.45 of this title (relating to the Negotiation Timetable), to attempt to resolve all claims and counterclaims. No party is obligated to settle with the other party as a result of the negotiation.

Comments

Source Note: The provisions of this §1.44 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.45: Negotiation Timetable

(a) After the agency's General Counsel has determined that the petition for contested case status contains all essential requirements under §1.24, (relating to Mandatory Contents of a Petition for Contested Case Status), and has referred the case to the agency's officer, designated in the contract to be in charge of the negotiations, he or she shall review the contractor's claim(s) and the Board's counterclaim(s), if any, and, with appropriate assistance from the agency's ADR coordinator, shall initiate negotiations with the contractor to attempt to resolve the claim(s) and counterclaim(s).

(b) Subject to subsection (c) of this section, the parties shall begin negotiations within a reasonable period of time, not to exceed 60 days following the later of:

(1) the date of termination of the contract;

(2) the completion date, or substantial completion date in the case of construction projects, in the original contract; or

(3) the date the unit of state government receives the contractor's petition for contested case status.

(c) The agency may delay negotiations until after the 180th day after the date of the event giving rise to the claim of breach of contract by:

(1) delivering written notice to the contractor that the commencement of negotiations will be delayed; and

(2) delivering written notice to the contractor when the Board is ready to begin negotiations.

(d) The parties may conduct negotiations according to an agreed schedule as long as they begin negotiations no later than the deadlines set forth in subsections (b) and (c) of this section, whichever is applicable.

(e) Subject to subsection (f) of this section, the parties shall complete the negotiations that are required by this section as a prerequisite to a contractor's request for contested case hearing no later than 270 days after the agency receives the contractor's notice of claim.

(f) On or before the 270th day after the agency receives the contractor's petition for contested case status, the parties may agree in writing to extend the time for negotiations. The agreement shall be signed by a representative of each party, who has authority to bind the party, and shall provide for the extension of the statutory negotiation period until a date certain. The parties may enter into a series of written extension agreements that comply with the requirements of this section.

(g) The contractor may request a contested case hearing before the State Office of Administrative Hearings ("SOAH") pursuant to §1.48, (relating to Request for Contested Case Hearing), of this subchapter, after the 270th day after the agency receives the contractor's petition for contested case status, or after the expiration of any extension agreed to under subsection (f) of this section.

(h) The parties may agree to mediate the dispute at any time before the 270th day after the agency receives the contractor's petition for contested case status, or before the expiration of any extension agreed to by the parties pursuant to subsection (f) of this section. The mediation shall be governed by §1.46(c), (relating to Conduct of Negotiations).

(i) Nothing in this subsection is intended to prevent the parties from agreeing to commence negotiations earlier than the deadlines established in subsections (b) and (c) of this section, or from continuing or resuming negotiations, or requesting mediation after the contractor requests a contested case hearing before SOAH.

Comments

Source Note: The provisions of this §1.45 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.46: Conduct of Negotiations

(a) The parties' settlement approval procedures shall be disclosed prior to, or at the beginning of, negotiations. To the extent possible, the parties shall select negotiators who are knowledgeable about the subject matter of the dispute, who are in a position to reach agreement, and who can credibly recommend approval of an agreement.

(b) Unless the parties agree otherwise, each party shall be responsible for its own costs incurred in connection with a negotiation, including, without limitation, the costs of attorney's fees, consultant's fees, expert's fees, and mediation costs.

(c) The parties may conduct negotiations with the assistance of one or more neutral third parties. A negotiation under this subchapter may be conducted by any method, technique, or procedure authorized under the contract or agreed upon by the parties, including, without limitation, negotiation in person, by telephone, by correspondence, by video conference, or by any other method that permits the parties to identify their respective positions, discuss their respective differences, confer with their respective advisers, exchange offers of settlement, and settle. Parties may choose an assisted negotiation process other than mediation, including without limitation, processes such as mini-trials, early case neutral case evaluation by an impartial third-party, and fact-finding by an expert. If the parties choose to mediate their dispute, the mediation shall be conducted in accordance with §1.27, (relating to Referral to ADR Coordinator) through §1.35, (relating to Partial Settlements through ADR).

(d) The agency's negotiation strategy and neutral third parties shall be approved by the ADR coordinator, and the results of the negotiations reported to the ADR coordinator.

Comments

Source Note: The provisions of this §1.46 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.47: Settlement Agreement

(a) A settlement agreement may resolve an entire claim or any designated and severable portion of a claim.

(b) To be enforceable, a settlement agreement must be in writing and signed by representatives of the parties who have authority to bind each party.

(c) Partial settlement does not waive a party's rights under the Government Code, Chapter 2260, as to the parts of the claims or counterclaims that are not resolved.

Comments

Source Note: The provisions of this §1.47 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.48: Request for Contested Case Hearing

(a) If a claim for breach of contract is not resolved in its entirety through negotiation, mediation or other assisted negotiation process in accordance with this subchapter on or before the 270th day after the agency receives the notice of claim, or after the expiration of any extension agreed to by the parties pursuant to §1.45 of this title (relating to Negotiation Timetable), the contractor may file a request with the agency for a contested case hearing before SOAH.

(b) A request for a contested case hearing shall state the legal and factual basis for the claim, and shall be delivered to the Commissioner or other officer designated in the contract to receive notice within a reasonable time after the 270th day or the expiration of any written extension agreed to pursuant to §1.45 of this title (relating to Negotiation Timetable).

(c) The agency shall forward the contractor's request for contested case hearing to SOAH within a reasonable period of time, not to exceed thirty days, after receipt of the request.

(d) The parties may agree to submit the case to SOAH before the 270th day after the notice of claim is received by the agency if they have achieved a partial resolution of the claim or if an impasse has been reached in the negotiations and proceeding to a contested case hearing would serve the interests of justice.

Comments

Source Note: The provisions of this §1.48 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.60: State Office of Administrative Hearings

Formal contested case hearings shall be conducted for the Board by SOAH, as authorized by Chapters 2001 and §2003.021 of the Texas Government Code.

Comments

Source Note: The provisions of this §1.60 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.61: Classification of Parties

(a) Designations of parties are as follows:

(1) Petitioner--the party requesting a hearing.

(2) Respondent--the party named as such by the petitioners.

(3) Intervenor--a person who shows an administratively cognizable or justiciable interest in the contested case.

(b) Regardless of errors as to designation of parties in the pleadings, parties shall be accorded their true status in a formal contested case hearing at SOAH.

Comments

Source Note: The provisions of this §1.61 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.62: Notice of Hearing

(a) All parties to a formal contested case hearing shall be mailed written notice at least 15 calendar days before the date set for the hearing. The notice shall include:

(1) a statement of time, place, and nature of the hearing;

(2) a statement of the legal authority and jurisdiction under which the hearing is to be held;

(3) a reference to the particular section of the statutes and rules involved; and

(4) a short and plain statement of the matters asserted. The petitioner may satisfy this requirement by incorporating the petition by reference in the notice of hearing.

(b) If the petition was initiated by the Commissioner, service may be made by sending the notice to the party's last known address as shown by the Board's records. If the petition was initiated by a party other than the Commissioner, notice will be mailed to the address on that party's most recently filed pleading.

Comments

Source Note: The provisions of this §1.62 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.63: Proposed Findings of Fact and Conclusions of Law

If any party to a contested case hearing at SOAH files proposed findings of fact and conclusions of law within 10 days of the date on which the record is closed, or within any other period of time that the ALJ may prescribe, the ALJ shall rule on each proposal.

Comments

Source Note: The provisions of this §1.63 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.64: Default

(a) If party who filed the petition for contested case status fails to appear on the day and time set for the hearing, the Commissioner may move in that party's absence for a default, and the ALJ may issue a proposal for decision against the defaulting party. In the proposal for decision or order, the factual allegations against that party in the notice of hearing will be deemed admitted.

(b) If the party who filed the petition fails to appear on the day and time set for hearing, the Commissioner may move for dismissal of the case from the SOAH docket.

(c) The notice of hearing must include disclosure, in at least twelve-point, bold-face type, that a failure to appear on the date and time of the hearing will result in a default order or dismissal.

Comments

Source Note: The provisions of this §1.64 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.65: Exceptions to Proposal for Decision

(a) Pursuant to Chapter 2001 of the Texas Government Code, every party has the right to file exceptions to the Proposal for Decision issued by the ALJ and to present a brief with respect to the exceptions.

(b) All exceptions must be mailed within 10 working days of the proponent's receipt of the Proposal for Decision, with replies, if any, to be mailed within ten working days of the receipt of exceptions. Extensions of the deadline to file exceptions shall be negotiated between the parties; the first extension shall not be unreasonably withheld.

Comments

Source Note: The provisions of this §1.65 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.66: Board Meeting to Consider Proposal for Decision

(a) The Board shall take up the Proposal for Decision and adopt a final order in a contested case at the next regularly scheduled Board meeting after the hearing is finally closed, if sufficient time remains before the meeting for the parties to receive proper notice.

(b) At least 15 days notice shall be given by the Commissioner to all parties to a hearing of the time and place of the Board meeting at which the Proposal for Decision will be considered by the Board.

Comments

Source Note: The provisions of this §1.66 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.67: Motion for Rehearing

A motion for rehearing shall be filed not later than the 20th day after the party or the party's attorney of record is notified of the final decision or order that may become final under Texas Government Code, §2001.144. The procedures for a Motion for Rehearing shall be those procedures under Texas Government Code, §2001.146, and Texas appeals cases interpreting that statute.

Comments

Source Note: The provisions of this §1.67 adopted to be effective February 26, 2004, 29 TexReg 1658

Subchapter C

§1.80: Scope and Purpose

(a) This subchapter establishes the criteria, procedures, and standards of conduct governing the relationship between the Texas Higher Education Coordinating Board (Board) and its officers and employees and private donors and private organizations that exist to further the duties and purposes of the Board.

(b) The purpose of this subchapter is to comply with the provisions of Texas Government Code, §2255.001.

Comments

Source Note: The provisions of this §1.80 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.81: Definitions

The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Commissioner--The Commissioner of the Texas Higher Education Coordinating Board.

(2) Board--The Texas Higher Education Coordinating Board

(3) Donation--A contribution of anything of value (financial or in-kind gifts such as goods or services) given to the Board for public higher education purposes or to a private organization that exists to further the duties or functions of the Board. The Board may not accept donations of real property (real estate) without the express permission and authorization of the legislature.

(4) Employee--A regular, acting, exempt, full-time or part-time employee of the agency.

(5) Private donor--People or private organizations that make a donation to the Board for higher education purposes, or that make a donation to a private organization that exists to further the purposes, and to assist in accomplishing the duties of the Board.

(6) Private organization--A private organization that exists to further the purposes and to assist in accomplishing the duties of the Board.

Comments

Source Note: The provisions of this §1.81 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.82: Donations by Private Donors to the Board

(a) A private donor may make donations to the Board to be spent for specified or unspecified public higher education purposes. If the donor specifies the purpose, the Board must expend the donation only for that purpose.

(b) All donations shall be expended in accordance with the provisions of the State Appropriations Act and shall be deposited in the state treasury unless exempted by specific statutory authority.

(c) All donations shall be coordinated through the Commissioner.

(d) The Board may not transfer a private donation to a foundation or private/public development fund without specific written permission from the donor and the written approval of the Commissioner.

Comments

Source Note: The provisions of this §1.82 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.83: Donations by a Private Donor to a Private Organization That Exists to Further the Purposes and Duties of the Board

(a) A private donor may make donations to a private organization that exists to further the purposes and to assist in accomplishing the duties of the Board.

(b) The private organization shall administer and use the donation in accordance with the provisions in the memorandum of understanding between the private organization and the Board, as described in §1.65(c) of this title (relating to Relationship between a Private Organization and the Board).

Comments

Source Note: The provisions of this §1.83 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.84: Organizing a Private Organization That Exists to Further the Duties and Purposes of the Board

(a) The "College for All Texans Foundation: Closing the Gaps" is designated as the official nonprofit partner (ONP) of the Board.

(b) The Chair of the Board and the Board of Trustees of the ONP may cooperatively appoint a board of trustees for the organization. The Commissioner shall serve as an ex officio trustee with no vote. Board employees may hold office and vote provided there is no conflict of interest in accordance with all federal and state laws and Board policies. This provision applies to the employee's spouse and children.

Comments

Source Note: The provisions of this §1.84 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.85: Relationship between a Private Organization and the Board

(a) The Board may provide to a private organization covered by these sections:

(1) fundraising and solicitation assistance;

(2) staff services to coordinate activities;

(3) administrative and clerical services;

(4) office and meeting space;

(5) training; and

(6) other miscellaneous services as needed to further the duties and purposes of the Board.

(b) The private organization may provide:

(1) postage;

(2) printing, including letterhead and newsletters;

(3) special event insurance;

(4) recognition of donors; and

(5) bond and liability insurance for organization officers.

(c) The private organization and the Board shall enter into a memorandum of understanding (MOU) which contains specific provisions regarding:

(1) the relationship between the private organization and the Board, and a mechanism for solving any conflicts or disputes;

(2) fundraising and solicitation;

(3) the use of all funds and other donations from fundraising or solicitation, less legitimate expenses as described in the MOU, for the benefit of the Board;

(4) the maintenance by the private organization of receipts and documentation of all funds and other donations received, including furnishing such records to the Board; and

(5) the furnishing to the Board of any audit of the private organization by the Internal Revenue Service or a private firm.

Comments

Source Note: The provisions of this §1.85 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.86: Standards of Conduct Between Board Employees and Private Donors

(a) A Board officer or employee shall not accept or solicit any gift, favor, or service from a private donor that might reasonably tend to influence his/her official conduct.

(b) An officer or employee shall not accept employment or engage in any business or professional activity with a private donor which the officer or employee might reasonably expect would require or induce him/her to disclose confidential information acquired by reason of his/her official position.

(c) An officer or employee shall not accept other employment or compensation from a private donor that would reasonably be expected to impair the officer or employee's independence of judgment in the performance of his/her official position.

(d) An officer or employee shall not make personal investments in association with a private donor that could reasonably be expected to create a substantial conflict between the officer or employee's private interest and the interest of the Board.

(e) An officer or employee shall not solicit, accept, or agree to accept any benefits for having exercised his/her official powers on behalf of a private donor or performed his official duties in favor of private donor.

(f) An officer or employee who has policy direction over the Board and who serves as an officer or director of a private donor shall not vote on any measure, proposal, or decision pending before the private donor if the Board might reasonably be expected to have an interest in such measure, proposal, or decision.

(g) An officer or employee shall not authorize a private donor to use property of the Board unless the property is used in accordance with a contract or memorandum of understanding between the Board and the private donor, or the Board is otherwise compensated for the use of the property.

Comments

Source Note: The provisions of this §1.86 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.87: Miscellaneous

The relationship between a private donor and a private organization and the Board, including fundraising and solicitation activities, is subject to all applicable federal and state laws, rules and regulations, and local ordinances governing each entity and its employees.

Comments

Source Note: The provisions of this §1.87 adopted to be effective February 26, 2004, 29 TexReg 1658

Subchapter D

§1.96: Scope and Purpose

(a) This subchapter shall govern instances in which individuals request correction of incorrect information, for which the agency is responsible, pertaining to the individual or to a person that the requestor has the legal right to represent. This subchapter should not be read to contradict §1.10 of this title (relating to the Texas Public Information Act), the Family Educational Rights and Privacy Act (FERPA), or any other applicable state or federal law.

(b) The purpose of this subchapter is to implement Texas Government Code, §559.004, concerning individuals' Right to Correction of Incorrect Information.

Comments

Source Note: The provisions of this §1.96 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.97: Definitions

The following words and terms, when used in this subchapter, shall have the following meaning, unless the context clearly indicates otherwise:

(1) Agency--Texas Higher Education Coordinating Board.

(2) Day--A calendar day. If an act is required to occur on a day falling on a Saturday, Sunday, or holiday, the first working day that is not one of these days should be counted as the required day for purpose of this act.

(3) Program or Division--Any subunit of the Agency, to be determined by the Agency.

(4) Requestor--The person who submits a request for correction of incorrect information, whether on his or her own behalf or on behalf of someone else.

Comments

Source Note: The provisions of this §1.97 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.98: Individual's Right to Correction of Incorrect Information

(a) An individual who finds that the information collected by and in the possession of the agency on a form or through electronic media, is incorrect, has a right to have the agency correct the information. The individual has no right to change information that was correct when it was submitted, but which is no longer correct. The information to be changed must be concerning the requestor, or concerning a person that the requestor has the legal right to represent. The agency may request proof of this authority, and if it does so, the requestor must provide the proof, before the agency processes the request.

(b) The individual must submit the correction request in writing to the program or division within the agency that is in possession of the information. The program or division may be identified by correspondence received from the agency, or through a request for public information from the agency, submitted in writing to: Open Records Officer, Texas Higher Education Coordinating Board, P.O. Box 12788, Austin, Texas 78722

(c) The correction request must:

(1) specifically identify the information which the individual believes is incorrect;

(2) provide the agency with sufficient information to establish that the information is incorrect and was incorrect at the time it was submitted to the agency; and

(3) provide the correct information.

Comments

Source Note: The provisions of this §1.98 adopted to be effective February 26, 2004, 29 TexReg 1658

§1.99: Correction Procedure

(a) The program or division within the agency that is the custodian of the target information shall provide an acknowledgement of receipt of the correction request to the requestor within 10 days from the receipt of the request.

(b) The program or division with custody and control of the information shall review the information identified by the individual as incorrect and the proof that the requestor has provided, and determine whether the information in the agency's record should be corrected.

(1) If the agency determines that the information is incorrect in an electronic record or form, an individual with authority to access the information shall enter the correction into the record by electronic media, at or near the place where the incorrect information appears with the date, and reason for the correction, by whom the correction was requested, and by whom the correction was made.

(2) If the agency determines that the information is incorrect in a paper record or form, an individual with authority to access the information shall insert the information as submitted by the individual requesting the correction, along with an entry of the date, and the name of the individual inserting the correction.

(3) If the agency determines that the information is correct, no correction shall be made to the information.

(c) The program or division that is the custodian of the target information shall notify the individual of its determination and, if the information was corrected, shall provide the requestor with a copy of the corrected information.

(d) The agency shall not charge or bill a requestor for correction of an incorrect record.

(e) The agency shall not alter or destroy an original agency record or document in its possession except as required or authorized by law.

Comments

Source Note: The provisions of this §1.99 adopted to be effective February 26, 2004, 29 TexReg 1658