Presenter: Walt Dabney

Commission Agenda Item No. 14
Action
State Park Employees Acceptance of Gratuities
August 2005

I. Executive Summary: Acceptance of gratuities by certain Texas Parks and Wildlife Department employees requires the commission to establish a rule authorizing the acceptance of and determining the eligibility for the acceptance of gratuities by certain employees. Proposed rule §59.221 in 31 Texas Administrative Code is the result of House Bill 2685 enacted by the 79th Texas Legislature which added new Parks and Wildlife Code §11.0262 concerning the acceptance of gratuities by state park employees whose primary duties are serving food or beverages in a restaurant, cafeteria or other food service establishment. The State Parks Division offers state-operated food service at five locations: Indian Lodge, Bentsen Rio-Grande, Big Bend Ranch, Landmark Inn and Starr Mansion where this rule would apply.

II. Recommendation: Staff recommends that the Commission adopt the proposed rule to implement House Bill 2685 by the following motion:

"The Texas Parks and Wildlife Commission adopts 31 Texas Administrative Code §59.221, concerning Acceptance of Gratuities, with changes as necessary to the proposed text as published in the July 22, 2005, issue of the Texas Register (30 Tex.Reg. 4198)."

Attachment – 1

  1. Exhibit A – Proposed Rule

Commission Agenda Item No. 14
Exhibit A

Employee Gratuity Rule
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department (TPWD) proposes new §59.221, concerning Acceptance of Gratuities. House Bill 2685, enacted by the 79th Texas Legislature (Regular Session), added new Parks and Wildlife Code, §11.0262, which provides that an employee of the state parks division of the department may accept a gratuity if the employee, as a primary job duty, serves food or beverages in a restaurant, cafeteria, or other food service establishment located within a state park that is owned and operated by the department, provided the employee has been authorized by the department to accept gratuities and reports the gratuities according to department rules.

The proposed new section would implement the requirements of H.B. 2685 by requiring the department to authorize those employees eligible to receive gratuities as a consequence of their department duties and by establishing the department policy with respect to the reporting of gratuities received by department employees. The proposed new section would require that employees be authorized by the executive director to receive gratuities as a consequence of their job duties. The proposed new section also would stipulate that employees authorized to receive gratuities and the department will follow all applicable laws and policies with respect to the reporting and recordkeeping of income from to the acceptance of gratuities.


2. Fiscal Note.

Walt Dabney, Parks Division Director, has determined that for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to state government as a result of enforcing or administering the rule. Based on 2004 pre-tax restaurant sales, the department will incur an estimated expense of $34,782 per year due to FICA tax withholding. The department derived this estimate by taking the 2004 pre-tax restaurant sales ($303,110), multiplying that figure by the customary gratuity of 15%, and multiplying the resulting number ($45,466.50) by the department’s share of FICA withholding tax (7.65%).


3. Public Benefit/Cost Note.

Mr. Dabney also has determined that for each of the first five years the rule as proposed is in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be compliance with the directives of the legislature.

(B) There will be no adverse economic effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

(D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.


4. Request for Public Comment.

Comments on the proposed rule may be submitted to Mike Crevier, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-8560 (e-mail: mike.crevier@tpwd.state.tx.us).


5. Statutory Authority.

The new rule is proposed under Parks and Wildlife Code, §11.0262, as added by House Bill 2685, 79th Texas Legislature, Regular Session, which authorizes the commission to adopt rules necessary to implement the requirements of the section.

The proposed amendment affects Parks and Wildlife Code, Chapter 11.


§59.221. Acceptance of Gratuities.

(a) No employee of the department may accept a gratuity offered by a customer of a restaurant, cafeteria, or other food service establishment operated by the department unless the employee has been authorized to do so by the executive director.

(b) An employee authorized under subsection (a) of this section to accept gratuities shall follow the policies of the department and all applicable laws of the United States and the State of Texas applicable to the reporting of gratuities.

(c) The department shall follow all applicable laws of the United States and the State of Texas applicable to the reporting of gratuities received by department employees under the provisions of this section.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on


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