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