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.