By Duncan H.B. No. 2253
Substitute the following for H.B. No. 2253:
By Goodman C.S.H.B. No. 2253
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to amending certain provisions concerning minimum
1-3 standards of uniform practice and procedure for state agencies
1-4 contained in the Administrative Procedure and Texas Register Act.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 5. of the Administrative Procedure and
1-7 Texas Register Act, Article 6252-13a, Vernon's Texas Civil
1-8 Statutes), is amended to read as follows:
1-9 Sec. 5. Procedure for adoption of rules. (a) Prior to the
1-10 adoption of any rule, an agency shall give at least 30 days' notice
1-11 of its intended action. Notice of the proposed rule shall be filed
1-12 with the secretary of state and published by the secretary of state
1-13 in the Texas Register. The notice must include:
1-14 (1) a brief explanation of the proposed rule;
1-15 (2) the text of the proposed rule, except any portion
1-16 omitted as provided in Section 6(c) of this Act, prepared in a
1-17 manner to indicate the words to be added or deleted from the
1-18 current text, if any;
1-19 (3) a statement of the statutory or other authority
1-20 under which the rule is proposed to be promulgated, including a
1-21 concise explanation of the particular statutory or other provisions
1-22 under which the rule is proposed, the section or article of the
1-23 code affected, and a certificate that the proposed rule has been
2-1 reviewed by legal counsel and found to be within the agency's
2-2 authority to adopt;
2-3 (4) <a fiscal note showing the name and title of the
2-4 officer or employee responsible for preparing or approving it and
2-5 stating for each year for the first five years that the rule will
2-6 be in effect:>
2-7 <(A) the additional estimated cost to the state
2-8 and to local governments expected as a result of enforcing or
2-9 administering the rule;>
2-10 <(B) estimated reductions in costs to the state
2-11 and to local governments as a result of enforcing or administering
2-12 the rule;>
2-13 <(C) estimated loss or increase in revenue to
2-14 the state or to local governments as a result of enforcing or
2-15 administering the rule; and>
2-16 <(D) if applicable, that enforcing or
2-17 administering the rule will have no foreseeable implications in any
2-18 of the preceding respects;>
2-19 <(5) a public benefit-cost note showing the name and
2-20 title of the officer or employee responsible for preparing or
2-21 approving it and stating for each year for the first five years
2-22 that the rule will be in effect:>
2-23 <(A) the public benefits to be expected as a
2-24 result of adoption of the proposed rule; and>
2-25 <(B) the probable economic cost to persons who
3-1 are required to comply with the rule;>
3-2 <(6)> the local employment impact statement prepared
3-3 under Section 4A of this Act, if required;
3-4 <(7)> (5) a request for comments on the proposed rule
3-5 from any interested person; <and>
3-6 <(8)> (6) A statement that a regulatory analysis will
3-7 be prepared if requested as provided in Section 5(b)(1) of the
3-8 Administrative Procedure and Texas Register Act and any other
3-9 statement required by law and that any interested person may obtain
3-10 a copy of the regulatory analysis by contacting the agency.
3-11 (b)(1) An agency shall issue a regulatory analysis of a
3-12 proposed rule if, within 20 days after the published notice of
3-13 proposed rule adoption, the agency receives a written request for
3-14 the analysis from at least 25 persons, a governmental subdivision
3-15 or agency, or an association having at least 25 members.
3-16 (2) The written request may require the agency to
3-17 provide any or all of the following in its regulatory analysis:
3-18 (A) a description of the classes of persons who
3-19 probably will be affected by the proposed rule, including classes
3-20 that will bear the costs of the proposed rule and classes that will
3-21 benefit from the proposed rule;
3-22 (B) a description of the probable quantitative and
3-23 qualitative impact of the proposed rule, economic or otherwise,
3-24 upon affected classes of persons;
3-25 (C) the probable costs to the agency and to any other
4-1 agency of the implementation and enforcement of the proposed rule
4-2 and any anticipated effect on state revenues;
4-3 (D) a comparison of the probable costs and benefits of
4-4 the proposed rule to the probable costs and benefits of inaction;
4-5 (E) a determination of whether there are less costly
4-6 methods or less intrusive methods for achieving the purpose of the
4-7 proposed rule; and
4-8 (F) a description of any alternative methods for
4-9 achieving the purpose of the proposed rule that were seriously
4-10 considered by the agency and the reasons why they were rejected in
4-11 favor of the proposed rule.
4-12 (3) The regulatory analysis must be made available at
4-13 least 20 days before the earliest of:
4-14 (A) the end of the period during which persons may
4-15 make written submissions on the proposed rule;
4-16 (B) the end of the period during which an oral
4-17 proceeding may be requested; or
4-18 (C) the date of any required oral proceeding on the
4-19 proposed rule.
4-20 (c) Except as provided by Subsection <(h)> (j) of
4-21 this section, each notice of a proposed rule becomes effective as
4-22 notice when published in the register. The notice shall be mailed
4-23 to all persons who have made timely written requests of the agency
4-24 for advance notice of its rulemaking proceedings. However, failure
4-25 to mail the notice does not invalidate any actions taken or rules
5-1 adopted. Except as provided by this subsection, a proposed rule is
5-2 automatically withdrawn six months after the date of publication of
5-3 notice of the proposed rule in the Texas Register if the agency has
5-4 failed within that time to adopt, adopt as amended, or withdraw the
5-5 proposed rule.
5-6 <(c)> (d) Prior to the adoption of any rule, an agency shall
5-7 afford all interested persons reasonable opportunity to submit
5-8 data, views, or arguments, orally or in writing. In the case of
5-9 substantive rules, opportunity for public hearing must be granted
5-10 if requested by at least 25 persons, by a governmental subdivision
5-11 or agency, or by an association having at least 25 members. The
5-12 agency shall consider fully all written and oral submissions
5-13 concerning the proposed rule.
5-14 On adoption of a rule, if requested to do so as is provided
5-15 in Section 5b(1) of the Administrative Procedure and Texas Register
5-16 Act, the agency shall, either prior to the adoption or within 30
5-17 days after adoption, issue a statement containing the
5-18 following: (1) a summary of comments received from persons
5-19 interested in the rule showing the names of interested groups or
5-20 associations offering comment on the rule and whether they were for
5-21 or against its adoption;
5-22 (2) a statement of the principal reasons for and against
5-23 adoption of the rule;
5-24 (3) a statement of the reasons for overruling the
5-25 consideration urged against the rule;
6-1 (4) A notice that such statement will be kept by the agency
6-2 as a part of the permanent files of the agency, available for
6-3 review, as well as the name and address of the person to be
6-4 contacted to obtain such statement. <On adoption of a rule, the
6-5 agency, if requested to do so by an interested person either prior
6-6 to adoption or within 30 days after adoption, shall issue a concise
6-7 statement of the principal reasons for and against its adoption,
6-8 incorporating in the statement its reasons for overruling the
6-9 considerations urged against its adoption.>
6-10 <(c-1) The agency order finally adopting a rule must
6-11 include:>
6-12 <(1) a reasoned justification of the rule, including a
6-13 summary of comments received from parties interested in the rule
6-14 and showing the names of any interested group or association
6-15 offering comment on the rule and whether they were for or against
6-16 its adoption, and also including a restatement of the rule's
6-17 factual bases and the reasons why the agency disagrees with party
6-18 submissions and proposals;>
6-19 <(2) a concise restatement of the particular statutory
6-20 provisions under which the rule is adopted and of how the agency
6-21 interprets these provisions as authorizing or requiring the rule;
6-22 and>
6-23 <(3) a certification that the rule, as adopted, has
6-24 been reviewed by legal counsel and found to be a valid exercise of
6-25 the agency's legal authority.>
7-1 <(d)> (e) If an agency finds that an imminent peril to the
7-2 public health, safety, or welfare or a requirement of state or
7-3 federal law requires adoption of a rule on fewer than 30 days'
7-4 notice and states in writing its reasons for that finding, it may
7-5 proceed without prior notice or hearing or on any abbreviated
7-6 notice and hearing that it finds practicable to adopt an emergency
7-7 rule. The agency must set forth the requisite finding in the
7-8 preamble to the rule. The rule may be effective for a period of
7-9 not longer than 120 days renewable once for a period not exceeding
7-10 60 days, but the adoption of an identical rule under Subsections
7-11 (a) and (c) of this section is not precluded. An emergency rule
7-12 adopted under the provisions of this subsection, and the agency's
7-13 written reasons for the adoption, shall be filed in the office of
7-14 the secretary of state for publication in the Texas Register. In
7-15 an action contesting a rule adopted under this subsection (d), the
7-16 burden is on the agency to demonstrate the existence of the
7-17 emergency which is claimed to exist.
7-18 <(e)> (f) No rule hereafter adopted is valid unless adopted
7-19 in substantial compliance with this section. A proceeding to
7-20 contest any rule on the ground of noncompliance with the procedural
7-21 requirements of this section must be commenced within two years
7-22 after the effective date of the rule.
7-23 <(f)> (g) (1) An agency may not adopt a rule that is
7-24 substantially different from the proposed rule contained in the
7-25 published notice of proposed rule adoption.
8-1 (2) In determining whether an adopted rule is
8-2 substantially different from the published proposed rule upon which
8-3 it is required to be based, the following must be considered;
8-4 (A) the extent to which the adopted rule affects
8-5 persons other than those who would have been affected by the
8-6 published proposed rule;
8-7 (B) the extent to which the subject matter of the
8-8 adopted rule or the issues determined by that rule are different
8-9 from the subject matter or issues involved in the published
8-10 proposed rule; and
8-11 (C) the extent to which the effects of the adopted
8-12 rule differ from the effects of the published proposed rule had it
8-13 been adopted instead.
8-14 <(g)> (h) An agency may use informal conferences and
8-15 consultations as means of obtaining the viewpoints and advice of
8-16 interested persons concerning contemplated rulemaking. Each agency
8-17 also is authorized to appoint committees of experts or interested
8-18 persons or representatives of the general public to advise it with
8-19 respect to any contemplated rulemaking. The powers of these
8-20 committees are advisory only.
8-21 <(h)> (i) Each house of the legislature shall adopt rules
8-22 establishing a process under which the presiding officer of each
8-23 house shall refer each proposed agency rule to the appropriate
8-24 standing committee for review prior to adoption of the rule. When
8-25 an agency files notice of a proposed rule with the secretary of
9-1 state pursuant to Subsection (a) of this section, it shall also
9-2 deliver a copy of the notice to the lieutenant governor and the
9-3 speaker. On the vote of a majority of its members, a standing
9-4 committee may transmit to the agency a statement supporting or
9-5 opposing adoption of a proposed rule.
9-6 <(h)> (j) Notice of the adoption of a proposed rule by the
9-7 Commission on Jail Standards or the Commission on Law Enforcement
9-8 Officer Standards and Education that affects a law enforcement
9-9 agency of the state or a political subdivision of the state does
9-10 not become effective until the notice is published in compliance
9-11 with Subsection <(b)> (c) of this section and is mailed to each law
9-12 enforcement agency that may be affected by the proposed rule.
9-13 <(i)> (k) A rule shall be held invalid only if the legal
9-14 rights of the plaintiff have been or will be interfered with or
9-15 impaired because the rule:
9-16 (1) is in violation of constitutional or statutory
9-17 provisions;
9-18 (2) is in excess of the statutory authority of the agency;
9-19 (3) was not adopted in substantial compliance with the
9-20 procedures set forth in section 5; or
9-21 (4) lacks any legitimate reason to support it.
9-22 SECTION 2. Section 13(j) of the Administrative Procedure and
9-23 Texas Register Act, (Article 6252-13a, Vernon's Texas Civil
9-24 Statutes), is amended to read as follows:
9-25 (j) This subsection applies only to an administrative law
10-1 judge employed by the State Office of Administrative Hearings. The
10-2 administrative law judge who conducts the hearing shall consider
10-3 any applicable agency rules or policies in conducting the hearing,
10-4 but may not be supervised by the agency that the contested case is
10-5 before. The agency shall provide the administrative law judge with
10-6 a written statement of applicable rules or policies. An agency may
10-7 not attempt to influence the finding of facts or the administrative
10-8 law judge's application of the law in any contested case other than
10-9 by proper evidence and legal argument. An agency may not vacate or
10-10 modify an order, including a discovery or procedural order issued
10-11 by an administrative law judge. An agency may not change a finding
10-12 of fact by an administrative law judge. An agency may <only> not
10-13 change a <or> conclusion of law made by an administrative law judge
10-14 <or vacate or modify an order issued by the Administrative Law
10-15 Judge only for reasons of policy and must state in writing the
10-16 reason and legal basis for the change> unless the agency in its
10-17 order states why such <finding or> conclusion is changed.
10-18 SECTION 3. Section 14 and 14a of the Administrative
10-19 Procedure and Texas Register Act, (Article 6252-13a, Vernon's Texas
10-20 Civil Statutes) are amended and Section 14b is added. Such
10-21 amendments and additions are to read as follows:
10-22 Section 14. Rules of evidence; official notice. (a) In
10-23 contested cases, irrelevant, immaterial, or unduly repetitious
10-24 evidence shall be excluded. The rules of evidence as applied in
10-25 nonjury civil cases in the district courts of this state shall be
11-1 followed. When necessary to ascertain facts not reasonably
11-2 susceptible of proof under those rules, evidence not admissible
11-3 thereunder may be admitted, except where precluded by statute, if
11-4 it is of a type commonly relied upon by reasonably prudent men in
11-5 the conduct of their affairs. Agencies shall give effect to the
11-6 rules of privilege recognized by law. Objections to evidentiary
11-7 offers may be made and shall be noted in the record. Subject to
11-8 these requirements, if a hearing will be expedited and the interest
11-9 of the parties will not be prejudiced substantially, any part of
11-10 the evidence may be received in written form.
11-11 (b) In connection with any contested case held under the
11-12 provisions of this Act, an agency may swear witnesses and take
11-13 their testimony under oath.
11-14 <(c) On its own motion or on the written request of any
11-15 party to a contested case pending before it, on a showing of good
11-16 cause, and on deposit of sums that will reasonably insure payment
11-17 of the amounts estimated to accrue under Subsections (l)(1) and (2)
11-18 of this section, an agency shall issue a subpoena addressed to the
11-19 sheriff or any constable to require the attendance of witnesses and
11-20 the production of books, records, papers, or other objects as may
11-21 be necessary and proper for the purposes of the proceedings.>
11-22 <(d) On its own motion or on the written request of any
11-23 party to a contested case pending before it and on deposit of sums
11-24 that will reasonably insure payment of the amounts estimated to
11-25 accrue under Subsections (l)(1) and (2) of this section, an agency
12-1 shall issue a commission, addressed to the several officers
12-2 authorized by statute to take depositions, to require that the
12-3 deposition of a witness be taken, which commission shall authorize
12-4 the issuance of any subpoenas necessary to require that the witness
12-5 appear and produce, at the time of the deposition is taken, books,
12-6 records, papers, or other objects as may be necessary and proper
12-7 for the purposes of the proceeding. The deposition of a member of
12-8 an agency board may not be taken after a date has been set for
12-9 hearing.>
12-10 <(e) The place of taking the deposition shall be in the
12-11 county of the witness' address, or where the witness is employed or
12-12 regularly transacts business in person. The commission shall
12-13 authorize and require the officer or officers to whom it is
12-14 addressed, or either of them, to examine the witness before him on
12-15 the date and at the place named in the commission and to take
12-16 answers under oath to questions which may be propounded to the
12-17 witness by the parties to the proceeding, the agency, or the
12-18 attorneys for the parties or the agency. The commission shall
12-19 require the witness to remain in attendance from day to day until
12-20 the deposition is begun and completed.>
12-21 <(f) The witness shall be carefully examined, the testimony
12-22 shall be reduced to writing or typewriting by the officer taking
12-23 the deposition, or by some person under the officer's personal
12-24 supervision, or by the deponent in the officer's presence, and by
12-25 no other person, and shall, after it has been reduced to writing or
13-1 typewriting be subscribed by the deponent.>
13-2 <(g) The officer taking the oral deposition may not sustain
13-3 objections to any of the testimony taken, or exclude any of it, and
13-4 any of the parties or attorneys engaged in taking testimony have
13-5 their objections reserved for the action of the agency before which
13-6 the matter is pending. The administrator or other officer
13-7 conducting the hearing is not confined to objections made at the
13-8 taking of the testimony.>
13-9 <(h) When the testimony is fully transcribed, the deposition
13-10 shall be submitted to the witness for examination and read to or by
13-11 the witness, unless the examination and reading are waived by the
13-12 witness and by the parties in writing. However, if the witness is
13-13 a party to the contested case pending before the agency with an
13-14 attorney of record, the deposition officer shall notify the
13-15 attorney of record in writing by registered mail or certified mail
13-16 that the deposition is ready for examination and reading at the
13-17 office of the deposition officer, and if the witness does not
13-18 appear and examine, read, and sign the deposition within 20 days
13-19 after the mailing of the notice, the deposition shall be returned
13-20 as provided in this Act for unsigned depositions. In any event,
13-21 the witness must sign the deposition at least three days prior to
13-22 the hearing, or it shall be returned as provided in this Act for
13-23 unsigned depositions. Any changes in form or substance which the
13-24 witness desires to make shall be entered on the deposition by the
13-25 officer with a statement of the reasons given by the witness for
14-1 making them. The deposition shall then be signed by the witness,
14-2 unless the parties present at the taking of the deposition by
14-3 stipulation waive the signing or the witness is ill, cannot be
14-4 found, or refuses to sign. If the deposition is not signed by the
14-5 witness, the officer shall sign it and state on the record the fact
14-6 of the waiver, illness, or absence of the witness or the fact of
14-7 the refusal to sign, together with the reason, if any, given for
14-8 the failure to sign. The deposition may then be used as fully as
14-9 though signed.>
14-10 <(i) A deposition may be returned to the agency before which
14-11 the contested case is pending either by mail, or by a party
14-12 interested in taking the deposition, or any other persons. If
14-13 returned by mail, the agency endorse on the deposition that it was
14-14 received from the post office and shall cause the agency employee
14-15 so receiving the deposition to sign it. If not sent by mail, the
14-16 person delivering it to the agency shall make affidavit before the
14-17 agency that he received it from the hands of the officer before
14-18 whom it was taken, that it has not been out of his possession
14-19 since, and that it has undergone no alteration.>
14-20 <(j) A deposition, after being filed with the agency, may be
14-21 opened by an employee of the agency at the request of either party
14-22 or his counsel. The employee shall endorse on the deposition on
14-23 what day and at whose request it was opened, signing the
14-24 deposition, and it shall remain on file with the agency for the
14-25 inspection of any party.>
15-1 <(k) Regardless of whether cross interrogatories have been
15-2 propounded, any party is entitled to use the deposition in the
15-3 contested case pending before the agency.>
15-4 <(l) A witness or deponent who is not a party and who is
15-5 subpoenaed or otherwise compelled to attend any hearing or
15-6 proceeding to give a deposition or to produce books, records,
15-7 papers, or other objects that may be necessary and proper for the
15-8 purposes of the proceeding under the authority of this section is
15-9 entitled to receive:>
15-10 <(1) mileage of 10 cents a mile, or a greater amount
15-11 as prescribed by agency rule, for going to, and returning from the
15-12 place of the hearing or the place where the deposition is taken, if
15-13 the place is more than 25 miles from the person's place of
15-14 residence; and>
15-15 <(2) a fee of $10 a day, or a greater amount as
15-16 prescribed by agency rule, for each day or part of a day the person
15-17 is necessarily present as a witness or deponent.>
15-18 <(m) Mileage and fees to which a witness is entitled under
15-19 this section shall be paid by the party or agency at whose request
15-20 the witness appears or the deposition is taken, on presentation of
15-21 proper vouchers sworn by the witness and approved by the agency.>
15-22 <(n) In the case of failure of a person to comply with a
15-23 subpoena or commission issued under the authority of this Act, the
15-24 agency issuing the subpoena or commission, acting through the
15-25 attorney general, or the party requesting the subpoena or
16-1 commission, acting through the attorney general, or the party
16-2 requesting the subpoena or commission, may bring suit to enforce
16-3 the subpoena or commission in a district court, either in Travis
16-4 County, or in the county in which a hearing conducted by the agency
16-5 issuing the subpoena or commission may be held. The court, if it
16-6 determines that good cause exists for the issuance of the subpoena
16-7 or commission, shall order compliance with the requirements of the
16-8 subpoena or commission. Failure to obey the order of the court may
16-9 be punished by the court as contempt.>
16-10 (c) <(o)> In contested cases, documentary evidence may be
16-11 received in the form of copies or excerpts if the original is not
16-12 readily available. On request, parties shall be given an
16-13 opportunity to compare the copy with the original.
16-14 (d) <(p)> In contested cases, a party may conduct
16-15 cross-examinations required for a full and true disclosure of the
16-16 facts.
16-17 (e) <(q)> In connection with any hearing held under the
16-18 provisions of this Act, official notice may be taken of all facts
16-19 judicially cognizable. In addition, notice may be taken of
16-20 generally recognized facts within the area of the agency's
16-21 specialized knowledge. Parties shall be notified either before or
16-22 during the hearing, or by reference in preliminary reports or
16-23 otherwise, of the material officially noticed, including any staff
16-24 memoranda or data, and they must be afforded an opportunity to
16-25 contest the material so noticed. The special skills or knowledge
17-1 of the agency and its staff may be utilized in evaluating the
17-2 evidence.
17-3 (f) <(r)> In contested cases, all parties are entitled to
17-4 the assistance of their counsel before the administrative agencies.
17-5 This right may be expressly waived.
17-6 Sec. 14a. DISCOVERY; limitations on discovery<; entry on
17-7 property; use of reports and statements>. (a) All parties
17-8 appearing before agencies in contested case proceedings are
17-9 entitled as a minimum to utilize the following discovery procedures
17-10 as set forth in the Texas Rules of Civil Procedure as those rules
17-11 may subsequently be amended: interrogatories, requests for
17-12 admissions, depositions, discovery and production of documents, and
17-13 entry upon designated land and other property. Utilization of such
17-14 forms of discovery shall be in accordance with and subject to
17-15 limitations of the kind provided for discovery under the rules of
17-16 civil procedure. Agencies shall have authority to and shall adopt
17-17 rules implementing the use of these forms of discovery and
17-18 limitations.
17-19 (b) After notice and opportunity for hearing, an agency
17-20 shall impose or cause by rule the power to be imposed the following
17-21 minimum sanctions for abuse of discovery or failure to obey an
17-22 agency order:
17-23 (1) Disallow further discovery, in whole or in part,
17-24 by the noncompliant party;
17-25 (2) Limit the noncompliant party's participation in
18-1 the proceeding;
18-2 (3) Direct that certain facts be deemed admitted;
18-3 (4) Prohibit submission of certain evidence or
18-4 testimony;
18-5 (5) Strike pleadings, in full or in part, of the
18-6 noncompliant party;
18-7 (6) Dismiss the action, in full or in part;
18-8 (7) Suspend the processing of the application if the
18-9 applicant is noncompliant; or
18-10 (8) Require the party and/or representative to pay
18-11 reasonable expenses, including attorney fees, incurred because of
18-12 noncompliance.
18-13 (c) The deposition of a member of an agency board may not be
18-14 taken after a date has been set for hearing.
18-15 <(a) Upon motion of any party and upon notice to all other
18-16 parties, and subject to such limitations of the kind provided for
18-17 discovery under the Rules of Civil Procedure, the agency in which
18-18 an action is pending may order any party:>
18-19 <(1) to produce and permit the inspection and copying
18-20 or photographing by or on behalf of the moving party any of the
18-21 following which are in his possession, custody, or control; any
18-22 designated documents, papers, books, accounts, letters,
18-23 photographs, objects, or tangible things, not privileged, which
18-24 constitute or contain, or are reasonably calculated to lead to the
18-25 discovery of, evidence material to any matter involved in the
19-1 actions; and>
19-2 <(2) to permit entry upon designated land or other
19-3 property in his possession or control for the purpose of
19-4 inspecting, measuring, surveying, or photographing the property or
19-5 any designated object or operation thereon which may be material to
19-6 any matter involved in the action.>
19-7 <(b) The order shall specify the time, place, and manner of
19-8 making the inspection, measurement, or survey and taking the copies
19-9 and photographs and may prescribe such terms and conditions as are
19-10 just.>
19-11 <(c) The identity and location of any potential party or
19-12 witness may be obtained from any communication or other paper in
19-13 the possession, custody, or control of a party, and any party may
19-14 be required to produce and permit the inspection and copying of the
19-15 reports, including factual observations and opinions, of an expert
19-16 who will be called as a witness. Provided, that the rights herein
19-17 granted shall not extend to other written statements of witnesses
19-18 or other written communications passing between agents or
19-19 representatives or the employees of any party to the suit or to
19-20 other communications between any party and his agents,
19-21 representatives, or other employees, where made subsequent to the
19-22 occurrence or transaction upon which the suit is based, and made in
19-23 connection with the prosecution, investigation, or defense of such
19-24 claim or the circumstances out of which same has arisen.>
19-25 <(d) Any person, whether or not a party, shall be entitled
20-1 to obtain, upon request, a copy of any statement he has previously
20-2 made concerning the action or its subject matter and which is in
20-3 the possession, custody, or control of any party. If the request
20-4 is refused, the person may move for any agency order under this
20-5 section. For the purpose of this paragraph, a statement previously
20-6 made is (1) a written statement signed or otherwise adopted or
20-7 approved by the person making it, or (2) a stenographic,
20-8 mechanical, electrical, or other recording, or a transcription
20-9 thereof, which is substantially verbatim recital of any oral
20-10 statement by the person making it and contemporaneously recorded.>
20-11 Sec. 14b. Subpoenas: Fees. (a) On its own motion or on
20-12 the written request of any party to a contested case pending before
20-13 it, on a showing of good cause, and on deposit of sums that will
20-14 reasonably insure payment of the amounts estimated to accrue under
20-15 subsections (b) and (c) of this section, an agency shall issue a
20-16 subpoena addressed to the sheriff or any constable of the State of
20-17 Texas or other person authorized to serve and execute subpoenas as
20-18 provided in the Texas Rules of Civil Procedure to require the
20-19 attendance at a deposition or a hearing of witnesses and the
20-20 production of books, records, papers, or other objects as may be
20-21 necessary and proper for the purposes of the proceedings.
20-22 (b) A witness or deponent who is not a party and who is
20-23 subpoenaed or otherwise compelled to attend any hearing or
20-24 deposition or to produce books, records, papers, or other objects
20-25 that may be necessary and proper for the purposes of the proceeding
21-1 under the authority of this section is entitled to receive:
21-2 (1) mileage expense in an amount equal to that
21-3 authorized for state employees pursuant to the current General
21-4 Appropriations Act, or a greater amount as prescribed by agency
21-5 rule, for going to, and returning from the place of the hearing or
21-6 deposition, if the place is more than 25 miles from the person's
21-7 place of residence; and
21-8 (2) per diem expenses in an amount equal to that
21-9 authorized for state employees pursuant the current General
21-10 Appropriations Act, or a greater amount as prescribed by agency
21-11 rule, for each day or part of a day the person is necessarily
21-12 present as a witness or deponent.
21-13 (c) Mileage and fees to which a witness or deponent is
21-14 entitled under the section shall be paid by the party or agency at
21-15 whose request the witness appears or the deposition is taken, on
21-16 presentation of proper vouchers sworn by the witness and approved
21-17 by the agency.
21-18 (d) In the case of failure to comply with a subpoena issued
21-19 under the authority of this Act, the agency issuing the subpoena,
21-20 acting through the attorney general, or the party requesting the
21-21 subpoena, may bring suit to enforce the subpoena in a district
21-22 court, either in Travis County, or in the county in which a hearing
21-23 conducted by the agency issuing the subpoena may be held. The
21-24 court, if it determines that good cause exists for the issuance of
21-25 the subpoena, shall order compliance with the requirements of the
22-1 subpoena. Failure to obey the order of the court may be punished
22-2 by the court as contempt.
22-3 SECTION 4. Section 16 of the Administrative Procedure and
22-4 Texas Register Act, (Article 6252-13a, Vernon's Texas Civil
22-5 Statutes) is amended to read as follows:
22-6 Sec. 16. (a) A final decision or order adverse to a party
22-7 in a contested case must be in writing <or stated in the record>.
22-8 (b) A final decision must include findings of fact and
22-9 conclusions of law, separately stated. Findings of fact, if set
22-10 forth in statutory language, must be accompanied by a concise and
22-11 explicit statement of the underlying facts supporting the findings.
22-12 If<, in accordance with agency rules,> a party submitted proposed
22-13 findings of fact, the decision shall include a ruling on each
22-14 proposed finding. Parties shall be notified <either personally or>
22-15 by first class or certified mail of any decision or order. All
22-16 parties or their attorneys or other designated representative of
22-17 record in agency proceedings shall furnish the agency with an
22-18 accurate mailing address. When an agency issues a final decision
22-19 or order ruling on a motion for rehearing, the agency shall send a
22-20 copy of that final decision or order by first class or certified
22-21 mail to the attorneys of record, or to the parties or their other
22-22 designated representative if not represented by an attorney of
22-23 record, <and> shall keep an appropriate record of that mailing, and
22-24 shall attach to the decision or order a certification of the date
22-25 of mailing and the names and addresses of those who were mailed
23-1 such decision or order. <If a party is not represented by an
23-2 attorney of record, then the agency shall send a copy of a final
23-3 decision or order ruling on a motion for rehearing by first class
23-4 mail to that party, and the agency shall keep an appropriate record
23-5 of that mailing. A party or attorney of record notified by mail of
23-6 a final decision or order as required by this section shall be
23-7 presumed to have been notified on the date such notice is mailed.>
23-8 (c) A decision is final, in the absence of a timely motion
23-9 for rehearing, on the expiration of the period for filing a motion
23-10 for rehearing, and is final and appealable on the date of mailing
23-11 <rendition> of the order overruling the motion for rehearing, or on
23-12 the date the motion is overruled by operation of law, whichever
23-13 occurs first. If an agency board includes a member who (1)
23-14 receives no salary for his work as a board member and who (2)
23-15 resides outside Travis County, the board may rule on a motion for
23-16 rehearing at a meeting or by mail, telephone, telegraph, or other
23-17 suitable means of communication. If an agency finds that an
23-18 imminent peril to the public health, safety, or welfare requires
23-19 immediate effect of a final decision or order in a contested case,
23-20 it shall recite the finding in the decision or order as well as the
23-21 fact that the decision or order is final and effective on the date
23-22 of mailing <rendered>, in which event the decision or order is
23-23 final and appealable on the date of mailing <rendered> and no
23-24 motion for rehearing is required as a prerequisite for appeal.
23-25 <(d) The final decision or order must be rendered within 60
24-1 days after the date the hearing is finally closed. In a contested
24-2 case heard by other than a majority of the officials of an agency,
24-3 the agency may prescribe a longer period of time within which the
24-4 final order or decision of the agency shall be issued. The
24-5 extension, if so prescribed, shall be announced at the conclusion
24-6 of the hearing.>
24-7 <(e)> (d) Except as provided in Subsection (c) of this
24-8 section, a motion for rehearing is a prerequisite to an appeal. A
24-9 motion for rehearing must be filed by a party within 20 days after
24-10 the date <the party or his attorney of record is notified> the
24-11 final decision or order is mailed as required by Subsection (b) of
24-12 this section. Replies to a motion for rehearing must be filed with
24-13 the agency within 30 days after the date the <party or his attorney
24-14 of record is notified of the final> decision or order is mailed as
24-15 required by Subsection (b) of this section, and agency action on
24-16 the motion must be taken within 45 days after the <date the party
24-17 of his attorney of record is notified of the> final decision or
24-18 order is mailed as required by Subsection (b) of this section. If
24-19 agency action is not taken within the 45-day period, the motion for
24-20 rehearing is overruled by operation of law 45 days after the date
24-21 the <party or his attorney of record is notified of the> final
24-22 decision or order is mailed as required by Subsection (b) of this
24-23 section. The agency may by written order extend the period of time
24-24 for filing the motions and replies and taking agency action, except
24-25 that an extension may not extend the period of agency action beyond
25-1 90 days after the date the <party or his attorney of record is
25-2 notified of the> final decision or order is mailed as required by
25-3 Subsection (b) of this section. In the event of an extension, the
25-4 motion for rehearing is overruled by operation of law on the date
25-5 fixed by the order, or in the absence of a fixed date, 90 days
25-6 after the date the <party or his attorney of record is notified of
25-7 the> final decision or order is mailed as required by Subsection
25-8 (b) of this section.
25-9 <(f)> (e) The parties may by agreement with the approval of
25-10 the agency provide for a modification of the times provided in this
25-11 section.
25-12 SECTION 5. Section 18 of the Administrative Procedure and
25-13 Texas Register Act, (Article 6252-13a, Vernon's Texas Civil
25-14 Statues) is amended by amending Subsections (a) and (c), and by
25-15 adding Subsection (d) through (k) to read as follows:
25-16 (a) When the grant, denial, <or> renewal, possible
25-17 revocation, suspension, modification, annulment, withdrawal or
25-18 disciplinary action of a license is required to be preceded by
25-19 notice and opportunity for hearing, the provisions of this Act
25-20 concerning contested cases apply.
25-21 (b) When a licensee has made timely and sufficient
25-22 application for the renewal of a license or a new license for any
25-23 activity of a continuing nature, the existing license does not
25-24 expire until the application has been finally determined by the
25-25 agency, and in case the application is denied or the terms of the
26-1 new license limited, until the last day for seeking review of the
26-2 agency order or a later date fixed by order of the reviewing court.
26-3 (c) No revocation, suspension, involuntary modification,
26-4 annulment, <or>, withdrawal or disciplinary action relating to <of>
26-5 any license is effective unless, prior to the institution of agency
26-6 proceedings<,>:
26-7 (1) the agency has served <gave> notice <by personal
26-8 service or by registered or certified mail to> on the licensee of
26-9 the facts or conduct alleged to warrant the intended action<,> by
26-10 personal service or by certified mail, return receipt requested
26-11 with delivery restricted to the licensee, or by other means that
26-12 will be reasonably effective to give the licensee such notice;
26-13 <and>
26-14 (2) proof of service of notice under this section is
26-15 on file with the agency; and
26-16 (3) the licensee was given an opportunity to show
26-17 compliance with all requirements of law for the retention of the
26-18 license either, at the licensee's option, in writing or through
26-19 personal appearance at an informal meeting with one or more
26-20 authorized representatives of the agency.
26-21 (d) An agency serving notice under subsection (c) of this
26-22 section must inform the licensee of and provide access to all
26-23 factual information that it has and about which it has knowledge
26-24 concerning the allegations in the notice, including but not limited
26-25 to, all exculpatory information. Failure to provide exculpatory
27-1 information without a showing of good cause will cause the
27-2 automatic dismissal of any formal complaint without prejudice to
27-3 refiling the same charges.
27-4 (e) A licensee shall be allowed at least twenty days after
27-5 the date of service to respond to a notice issued pursuant to
27-6 subsection (c) of this section.
27-7 (f) Evidence provided in response to a notice issued to the
27-8 licensee pursuant to subsection (c) of this section of (1)
27-9 furnishing or offering or promising to furnish, or (2) accepting or
27-10 offering or promising to accept, a valuable consideration in
27-11 compromising or attempting to compromise a claim which was disputed
27-12 as to either validity or amount is not admissible to prove any
27-13 matter, or invalidity of, the matter. Evidence of conduct or
27-14 statements made in compromise negotiations is likewise not
27-15 admissible. This does not require the exclusion of any evidence
27-16 otherwise discoverable merely because it is presented in the course
27-17 of compromise negotiations nor shall exclusion when the evidence is
27-18 offered for another purpose, such as proving bias or prejudice or
27-19 interest of a witness or a party, negating a contention of undue
27-20 delay, or proving an effort to obstruct an investigation.
27-21 (g) A "complaint" in a licensing matter is a written
27-22 statement made by some credible person under oath, filed and
27-23 presented on behalf of an agency charging a person with having
27-24 committed an act or acts that if proven could effect the legal
27-25 rights or privileges of a party.
28-1 (h) A complaint must be in writing and shall allege with
28-2 reasonable certainty the specific act or acts relied upon by the
28-3 agency to constitute a violation of a specific statute or rule.
28-4 The complaint shall be specific enough to enable a person of common
28-5 understanding to know what is meant by such complaint and with a
28-6 degree of certainty that will give the person who is the subject of
28-7 such complaint notice of the particular act or acts alleged to be
28-8 a violation of such statute or rule.
28-9 (i) In a contested case hearing on a complaint, it shall be
28-10 the primary duty of the agency not to find against a licensee, but
28-11 to see that justice is done. An agency shall not suppress facts or
28-12 secret witnesses capable of establishing the truth of a fact or the
28-13 innocence of the licensee.
28-14 (j) In a licensing matter, the person who is the subject of
28-15 a complaint shall be duly served with a copy of the complaint and
28-16 shall be afforded an opportunity for hearing after reasonable
28-17 notice, served by the agency in a manner consistent with the
28-18 requirements for the service of citation under the Texas Rules of
28-19 Civil Procedure, of not less than 45 days, except in cases wherein
28-20 it is alleged, based upon a reasonable investigation, that an
28-21 imminent peril to the public health, safety, and welfare exists.
28-22 (k) In this section:
28-23 (1) "Fees and other expenses" means:
28-24 (A) the reasonable expenses of witnesses
28-25 incurred in preparing to testify or in attending or testifying;
29-1 (B) a reasonable fee for the professional
29-2 services of an expert witness; and
29-3 (C) the reasonable costs of a study, analysis,
29-4 engineering report, test, or other project the administrative law
29-5 judge finds to be necessary for the preparation of the party's
29-6 case.
29-7 (2) "Party" means an individual, partnership,
29-8 corporation, association, or public or private organization other
29-9 than a state agency.
29-10 (3) "State agency" means a board, commission,
29-11 department, office, or other agency that:
29-12 (A) is in the executive branch of state government;
29-13 (B) was created by the constitution or a statute of
29-14 this state; and
29-15 (C) has statewide jurisdiction.
29-16 A party to a contested case under this act brought by or
29-17 against a state agency in which the agency asserts a cause of
29-18 action against the party, either originally or as a counterclaim or
29-19 cross claim, is entitled to recover, in addition to all other costs
29-20 allowed by law or rule, fees, expenses, and reasonable attorney's
29-21 fees incurred by the party in defending the agency's action if:
29-22 (1) the administrative law judge or agency where applicable
29-23 finds that the action is frivolous, unreasonable, or without
29-24 foundation; and
29-25 (2) the action is dismissed or a decision is awarded
30-1 favorably to the party.
30-2 (a) To recover under this act, the party must file a written
30-3 motion alleging that the agency's claim is frivolous, unreasonable,
30-4 or without foundation. The motion may be filed at any time after
30-5 the filing of the complaint in which the agency's cause of action
30-6 is alleged.
30-7 (b) The motion must set forth the facts that justify the
30-8 party's claim.
30-9 (c) The motion must state that if the action is dismissed or
30-10 a decision is in favor of the party, the party intends to submit a
30-11 motion to an appropriate administrative law judge or agency to
30-12 recover fees, expenses, and reasonable attorney's fees.
30-13 The agency shall pay the fees and expenses from funds
30-14 appropriated for operation of the agency, funds appropriated for
30-15 the payment of fees and expenses or other funds available for that
30-16 purpose.
30-17 SECTION 6. Section 19(b) and 19(d) of the Administrative
30-18 Procedure and Texas Register Act, (Article 6252-13a, Vernon's Texas
30-19 Civil Statues) are amended to read as follows:
30-20 Section 19(b). (b) Proceedings for review are instituted by
30-21 filing a petition within 30 days after the decision complained of
30-22 is final and appealable. Unless otherwise provided by statute.
30-23 (1) the petition is filed in a District Court of
30-24 Travis County, Texas;
30-25 (2) <a copy of the petition must be served on the
31-1 agency and all parities of record in the proceedings before the
31-2 agency> the agency shall be served with citation and a copy of the
31-3 petition. The party filing the petition shall send a copy of the
31-4 petition by certified mail to the attorneys of record for all
31-5 parties before the agency. If a party is not represented by an
31-6 attorney the petition shall be sent by certified mail to the party
31-7 or the party's designated representative of record. The party
31-8 filing the petition shall file a certificate of mailing with the
31-9 district clerk stating the name and addresses of those persons to
31-10 whom the petition was mailed; and
31-11 (3) the filing of the petition vacates an agency
31-12 decision for which trial de novo is the manner of review authorized
31-13 by law, but does not affect the enforcement of an agency decision
31-14 for which another manner of review is authorized.
31-15 Section 19(d). (d) If the manner of review authorized by
31-16 law for the decision complained of is other than by trial de novo:
31-17 (1) after service of the petition on the agency, and
31-18 within the time permitted for filing an answer (or such additional
31-19 time as may be allowed by the court), the agency shall transmit to
31-20 the reviewing court the original or a certified copy of the entire
31-21 record of the proceeding under review and such agency record shall
31-22 be filed with the clerk of the court. Those portions of the record
31-23 sealed by the agency shall not be considered court records within
31-24 the meaning of the Texas Rules of Civil Procedure Rule 76a as it
31-25 exists on the date of this enactment and as amended. By
32-1 stipulation of all parties to the review proceedings, the record
32-2 may be shortened. A party unreasonably refusing to stipulate to
32-3 limit the record may be taxed by the court for the additional
32-4 costs, unless the party is subject to a rule adopted under
32-5 Subsection (f) of this section requiring payment of all costs of
32-6 record preparation. The court may require or permit subsequent
32-7 corrections or additions to the record.
32-8 (2) any party may apply to the court for leave to
32-9 present additional evidence and the court, if it is satisfied that
32-10 the additional evidence is material and that there were good
32-11 reasons for the failure to present it in the proceeding before the
32-12 agency, may order that the additional evidence be taken before the
32-13 agency on conditions determined by the court. The agency may
32-14 modify its findings and decision by reason of the additional
32-15 evidence and shall file such evidence and any modifications, new
32-16 findings, or decisions with the reviewing court;
32-17 (3) the party seeking judicial review shall offer, and
32-18 the reviewing court shall admit, the agency record into evidence as
32-19 an exhibit. The review is conducted by the court sitting without a
32-20 jury and is confined to the agency record, except that the court
32-21 may receive evidence of procedural irregularities alleged to have
32-22 occurred before the agency but which are not reflected in the
32-23 record.
32-24 SECTION 7. All other laws specific or general or parts of
32-25 law in conflict with this Act are hereby expressly repealed.
33-1 SECTION 8. This Act takes effect September 1, 1993 unless
33-2 otherwise provided in Section 9.
33-3 SECTION 9. The importance of this legislation and the
33-4 crowded condition of the calendars in both houses create an
33-5 emergency and an imperative public necessity that the
33-6 constitutional rule requiring bills to be read on three several
33-7 days in each house be suspended, and this rule is hereby suspended,
33-8 and that this Act take effect and be in force according to its
33-9 terms, and it is so enacted.