By: Harris of Dallas, Rosson S.B. No. 1298
A BILL TO BE ENTITLED
AN ACT
1-1 relating to amending certain provisions concerning minimum
1-2 standards of uniform practice and procedure for state agencies
1-3 contained in the Administrative Procedure and Texas Register Act.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 5, Administrative Procedure and Texas
1-6 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), is
1-7 amended to read as follows:
1-8 Sec. 5. Procedure for adoption of rules. (a) Prior to the
1-9 adoption of any rule, an agency shall give at least 30 days' notice
1-10 of its intended action. Notice of the proposed rule shall be filed
1-11 with the secretary of state and published by the secretary of state
1-12 in the Texas Register. The notice must include:
1-13 (1) a brief explanation of the proposed rule;
1-14 (2) the text of the proposed rule, except any portion
1-15 omitted as provided in Section 6(c) of this Act, prepared in a
1-16 manner to indicate the words to be added or deleted from the
1-17 current text, if any;
1-18 (3) a statement of the statutory or other authority
1-19 under which the rule is proposed to be promulgated, including a
1-20 concise explanation of the particular statutory or other provisions
1-21 under which the rule is proposed, the section or article of the
1-22 code affected, and a certification that the proposed rule has been
1-23 reviewed by legal counsel and found to be within the agency's
2-1 authority to adopt;
2-2 (4) <a fiscal note showing the name and title of the
2-3 officer or employee responsible for preparing or approving it and
2-4 stating for each year for the first five years that the rule will
2-5 be in effect:>
2-6 <(A) the additional estimated cost to the state
2-7 and to local governments expected as a result of enforcing or
2-8 administering the rule;>
2-9 <(B) estimated reductions in costs to the state
2-10 and to local governments as a result of enforcing or administering
2-11 the rule;>
2-12 <(C) estimated loss or increase in revenue to
2-13 the state or to local governments as a result of enforcing or
2-14 administering the rule; and>
2-15 <(D) if applicable, that enforcing or
2-16 administering the rule will have no foreseeable implications in any
2-17 of the preceding respects;>
2-18 <(5) a public benefit-cost note showing the name and
2-19 title of the officer or employee responsible for preparing or
2-20 approving it and stating for each year for the first five years
2-21 that the rule will be in effect:>
2-22 <(A) the public benefits to be expected as a
2-23 result of adoption of the proposed rule; and>
2-24 <(B) the probable economic cost to persons who
2-25 are required to comply with the rule;>
3-1 <(6)> the local employment impact statement prepared
3-2 under Section 4A of this Act, if required;
3-3 (5) <(7)> a request for comments on the proposed rule
3-4 from any interested person; <and>
3-5 (6) <(8)> a statement that a regulatory analysis will
3-6 be prepared if requested as provided in Subsection (b)(1) of this
3-7 section and any other statement required by law and that any
3-8 interested person may obtain a copy of the regulatory analysis by
3-9 contacting the agency.
3-10 (b)(1) An agency shall issue a regulatory analysis of a
3-11 proposed rule if, within 20 days after the published notice of
3-12 proposed rule adoption, the agency receives a written request for
3-13 the analysis from at least 25 persons, a governmental subdivision
3-14 or agency, or an association having at least 25 members.
3-15 (2) The written request may require the agency to
3-16 provide any or all of the following in its regulatory analysis:
3-17 (A) a description of the classes of persons who
3-18 probably will be affected by the proposed rule, including classes
3-19 that will bear the costs of the proposed rule and classes that will
3-20 benefit from the proposed rule;
3-21 (B) a description of the probable quantitative
3-22 and qualitative impact of the proposed rule, economic or otherwise,
3-23 on affected classes of persons;
3-24 (C) the probable costs to the agency and to any
3-25 other agency of the implementation and enforcement of the proposed
4-1 rule and any anticipated effect on state revenues;
4-2 (D) a comparison of the probable costs and
4-3 benefits of the proposed rule to the probable costs and benefits of
4-4 inaction;
4-5 (E) a determination of whether there are less
4-6 costly methods or less intrusive methods for achieving the purpose
4-7 of the 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
4-15 may 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
4-19 the proposed rule.
4-20 (c) Except as provided by Subsection (j) <(h)> of this
4-21 section, each notice of a proposed rule becomes effective as notice
4-22 when published in the register. The notice shall be mailed to all
4-23 persons who have made timely written requests of the agency for
4-24 advance notice of its rulemaking proceedings. However, failure to
4-25 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 (d)(1) <(c)> Prior to the adoption of any rule, an agency
5-7 shall afford all interested persons reasonable opportunity to
5-8 submit data, views, or arguments, orally or in writing. In the
5-9 case of substantive rules, opportunity for public hearing must be
5-10 granted if requested by at least 25 persons, by a governmental
5-11 subdivision or agency, or by an association having at least 25
5-12 members. The agency shall consider fully all written and oral
5-13 submissions concerning the proposed rule. If requested to do so as
5-14 is provided in Subsection 5(b)(1) of this section, the agency
5-15 shall, either prior to adoption of a rule or within 30 days after
5-16 such adoption, issue a statement containing as a minimum the
5-17 following:
5-18 (A) a statement including the names of
5-19 interested persons or interested groups or associations offering
5-20 comment on the rule and whether they were for or against the rule
5-21 and the reasons for agency disagreement with such comment or
5-22 proposed revisions or deletions;
5-23 (B) a statement of the reasons why the agency
5-24 did not consider in the adoption of the rule the considerations
5-25 urged against such rule;
6-1 (C) a statement of justification, including the
6-2 principal reasons for or against the adoption of the rule; and
6-3 (D) a restatement of the particular statutory
6-4 provision under which the rule is adopted and how the agency
6-5 interprets such provisions as authorizing or requiring the rule.
6-6 (2) The statement, if required to be issued pursuant
6-7 to this Act, shall be filed with the secretary of state and
6-8 published by the secretary of state in the Texas Register if a
6-9 request is made prior to adoption of the rule by at least 25
6-10 persons, by a governmental subdivision or agency, or by an
6-11 association having at least 25 members. If no such request is made
6-12 pursuant to this Act, the statement shall be kept by the agency as
6-13 a part of the permanent files of the agency, available for review
6-14 by the public. <On adoption of a rule, the agency, if requested to
6-15 do so by an interested person either prior to adoption or within 30
6-16 days after adoption, shall issue a concise statement of the
6-17 principal reasons for and against its adoption, incorporating in
6-18 the statement its reasons for overruling the considerations urged
6-19 against its adoption.>
6-20 <(c-1) The agency order finally adopting a rule must
6-21 include:>
6-22 <(1) a reasoned justification of the rule, including a
6-23 summary of comments received from parties interested in the rule
6-24 and showing the names of any interested group or association
6-25 offering comment on the rule and whether they were for or against
7-1 its adoption, and also including a restatement of the rule's
7-2 factual bases and the reasons why the agency disagrees with party
7-3 submissions and proposals;>
7-4 <(2) a concise restatement of the particular statutory
7-5 provisions under which the rule is adopted and of how the agency
7-6 interprets these provisions as authorizing or requiring the rule;
7-7 and>
7-8 <(3) a certification that the rule, as adopted, has
7-9 been reviewed by legal counsel and found to be a valid exercise of
7-10 the agency's legal authority>.
7-11 (e) <(d)> If an agency finds that an imminent peril to the
7-12 public health, safety, or welfare or a requirement of state or
7-13 federal law requires adoption of a rule on fewer than 30 days'
7-14 notice and states in writing its reasons for that finding, it may
7-15 proceed without prior notice or hearing or on any abbreviated
7-16 notice and hearing that it finds practicable to adopt an emergency
7-17 rule. The agency must set forth the requisite finding in the
7-18 preamble to the rule. The rule may be effective for a period of
7-19 not longer than 120 days renewable once for a period not exceeding
7-20 60 days, but the adoption of an identical rule under Subsections
7-21 (a) and (c) of this section is not precluded. An emergency rule
7-22 adopted under the provisions of this subsection, and the agency's
7-23 written reasons for the adoption, shall be filed in the office of
7-24 the secretary of state for publication in the Texas Register. In
7-25 an action contesting a rule adopted under this subsection, the
8-1 burden is on the agency to demonstrate the existence of the
8-2 emergency that is claimed to exist.
8-3 (f) <(e)> No rule hereafter adopted is valid unless adopted
8-4 in substantial compliance with this section. A proceeding to
8-5 contest any rule on the ground of noncompliance with the procedural
8-6 requirements of this section must be commenced within two years
8-7 after the effective date of the rule.
8-8 (g)(1) An agency may not adopt a rule that is substantially
8-9 different from the proposed rule contained in the published notice
8-10 of proposed rule adoption.
8-11 (2) In determining whether an adopted rule is
8-12 substantially different from the published proposed rule on which
8-13 it is required to be based, the following must be considered:
8-14 (A) the extent to which the adopted rule affects
8-15 persons other than those who would have been affected by the
8-16 published proposed rule;
8-17 (B) the extent to which the subject matter of
8-18 the adopted rule or the issues determined by that rule are
8-19 different from the subject matter or issues involved in the
8-20 published proposed rule; and
8-21 (C) the extent to which the effects of the
8-22 adopted rule differ from the effects of the published proposed rule
8-23 had it been adopted instead.
8-24 (h) <(f)> An agency may use informal conferences and
8-25 consultations as means of obtaining the viewpoints and advice of
9-1 interested persons concerning contemplated rulemaking. Each agency
9-2 also is authorized to appoint committees of experts or interested
9-3 persons or representatives of the general public to advise it with
9-4 respect to any contemplated rulemaking. The powers of these
9-5 committees are advisory only.
9-6 (i) <(g)> Each house of the legislature shall adopt rules
9-7 establishing a process under which the presiding officer of each
9-8 house shall refer each proposed agency rule to the appropriate
9-9 standing committee for review prior to adoption of the rule. When
9-10 an agency files notice of a proposed rule with the secretary of
9-11 state pursuant to Subsection (a) of this section, it shall also
9-12 deliver a copy of the notice to the lieutenant governor and the
9-13 speaker. On the vote of a majority of its members, a standing
9-14 committee may transmit to the agency a statement supporting or
9-15 opposing adoption of a proposed rule.
9-16 (j) <(h)> Notice of the adoption of a proposed rule by the
9-17 Commission on Jail Standards or the Commission on Law Enforcement
9-18 Officer Standards and Education that affects a law enforcement
9-19 agency of the state or a political subdivision of the state does
9-20 not become effective until the notice is published in compliance
9-21 with Subsection (c) <(b)> of this section and is mailed to each law
9-22 enforcement agency that may be affected by the proposed rule.
9-23 (k) A rule shall be held invalid only if the legal rights of
9-24 the plaintiff have been or will be interfered with or impaired
9-25 because the rule:
10-1 (1) is in violation of constitutional or statutory
10-2 provisions;
10-3 (2) is in excess of the statutory authority of the
10-4 agency;
10-5 (3) was not adopted in substantial compliance with the
10-6 procedures set forth in this section; or
10-7 (4) lacks any legitimate reason to support it.
10-8 SECTION 2. Subsection (j), Section 13, Administrative
10-9 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
10-10 Civil 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, including a discovery or procedural order issued
10-22 by an administrative law judge. An agency may not change a finding
10-23 of fact by an administrative law judge. An agency may not change a
10-24 <or> conclusion of law made by an <the> administrative law judge
10-25 unless the agency in its order states why such conclusion is
11-1 changed <or vacate or modify an order issued by the administrative
11-2 law judge only for reasons of policy and must state in writing the
11-3 reason and legal basis for the change>.
11-4 SECTION 3. The Administrative Procedure and Texas Register
11-5 Act (Article 6252-13a, Vernon's Texas Civil Statutes) is amended by
11-6 amending Sections 14 and 14a and adding Section 14b to read as
11-7 follows:
11-8 Sec. 14. Rules of evidence, official notice. (a) In
11-9 contested cases, irrelevant, immaterial, or unduly repetitious
11-10 evidence shall be excluded. The rules of evidence as applied in
11-11 nonjury civil cases in the district courts of this state shall be
11-12 followed. When necessary to ascertain facts not reasonably
11-13 susceptible of proof under those rules, evidence not admissible
11-14 thereunder may be admitted, except where precluded by statute, if
11-15 it is of a type commonly relied upon by reasonably prudent men in
11-16 the conduct of their affairs. Agencies shall give effect to the
11-17 rules of privilege recognized by law. Objections to evidentiary
11-18 offers may be made and shall be noted in the record. Subject to
11-19 these requirements, if a hearing will be expedited and the
11-20 interests of the parties will not be prejudiced substantially, any
11-21 part of the evidence may be received in written form.
11-22 (b) In connection with any contested case held under the
11-23 provisions of this Act, an agency may swear witnesses and take
11-24 their testimony under oath.
11-25 (c) <On its own motion or on the written request of any
12-1 party to a contested case pending before it, on a showing of good
12-2 cause, and on deposit of sums that will reasonably insure payment
12-3 of the amounts estimated to accrue under Subsections (l)(1) and (2)
12-4 of this section, an agency shall issue a subpoena addressed to the
12-5 sheriff or any constable to require the attendance of witnesses and
12-6 the production of books, records, papers, or other objects as may
12-7 be necessary and proper for the purposes of the proceedings.>
12-8 <(d) On its own motion or on the written request of any
12-9 party to a contested case pending before it and on deposit of sums
12-10 that will reasonably insure payment of the amounts estimated to
12-11 accrue under Subsections (l)(1) and (2) of this section, an agency
12-12 shall issue a commission, addressed to the several officers
12-13 authorized by statute to take depositions, to require that the
12-14 deposition of a witness be taken, which commission shall authorize
12-15 the issuance of any subpoenas necessary to require that the witness
12-16 appear and produce, at the time the deposition is taken, books,
12-17 records, papers, or other objects as may be necessary and proper
12-18 for the purposes of the proceeding. The deposition of a member of
12-19 an agency board may not be taken after a date has been set for
12-20 hearing.>
12-21 <(e) The place of taking the depositions shall be in the
12-22 county of the witness' residence, or where the witness is employed
12-23 or regularly transacts business in person. The commission shall
12-24 authorize and require the officer or officers to whom it is
12-25 addressed, or either of them, to examine the witness before him on
13-1 the date and at the place named in the commission and to take
13-2 answers under oath to questions which may be propounded to the
13-3 witness by the parties to the proceeding, the agency, or the
13-4 attorneys for the parties or the agency. The commission shall
13-5 require the witness to remain in attendance from day to day until
13-6 the deposition is begun and completed.>
13-7 <(f) The witness shall be carefully examined, the testimony
13-8 shall be reduced to writing or typewriting by the officer taking
13-9 the deposition, or by some person under the officer's persons
13-10 supervision, or by the deponent in the officer's presence, and by
13-11 no other person, and shall, after it has been reduced to writing or
13-12 typewriting, be subscribed by the deponent.>
13-13 <(g) The officer taking the oral deposition may not sustain
13-14 objections to any of the testimony taken, or exclude any of it, and
13-15 any of the parties or attorneys engaged in taking testimony have
13-16 their objections reserved for the action of the agency before which
13-17 the matter is pending. The administrator or other officer
13-18 conducting the hearing is not confined to objections made at the
13-19 taking of the testimony.>
13-20 <(h) When the testimony is fully transcribed, the deposition
13-21 shall be submitted to the witness for examination and read to or by
13-22 the witness, unless the examination and reading are waived by the
13-23 witness and by the parties in writing. However, if the witness is
13-24 a party to the contested case pending before the agency with an
13-25 attorney of record, the deposition officer shall notify the
14-1 attorney of record in writing by registered mail or certified mail
14-2 that the deposition is ready for examination and reading at the
14-3 office of the deposition officer, and if the witness does not
14-4 appear and examine, read, and sign the deposition within 20 days
14-5 after the mailing of the notice, the deposition shall be returned
14-6 as provided in this Act for unsigned depositions. In any event,
14-7 the witness must sign the deposition at least three days prior to
14-8 the hearing, or it shall be returned as provided in this Act for
14-9 unsigned depositions. Any changes in form or substance which the
14-10 witness desires to make shall be entered on the deposition by the
14-11 officer with a statement of the reasons given by the witness for
14-12 making them. The deposition shall then be signed by the witness,
14-13 unless the parties present at the taking of the deposition by
14-14 stipulation waive the signing or the witness is ill, cannot be
14-15 found, or refuses to sign. If the deposition is not signed by the
14-16 witness, the officer shall sign it and state on the record the fact
14-17 of the waiver, illness, or absence of the witness or the fact of
14-18 the refusal to sign, together with the reason, if any, given for
14-19 failure to sign. The deposition may then be used as fully as
14-20 though signed.>
14-21 <(i) A deposition may be returned to the agency before which
14-22 the contested case is pending either by mail, or by a party
14-23 interested in taking the deposition, or by any other person. If
14-24 returned by mail, the agency shall endorse on the deposition that
14-25 it was received from the post office and shall cause the agency
15-1 employee so receiving the deposition to sign it. If not sent by
15-2 mail, the person delivering it to the agency shall make affidavit
15-3 before the agency that he received it from the hands of the officer
15-4 before whom it was taken, that it has not been out of his
15-5 possession since, and that it has undergone no alteration.>
15-6 <(j) A deposition, after being filed with the agency, may be
15-7 opened by any employee of the agency at the request of either party
15-8 or his counsel. The employee shall endorse on the deposition on
15-9 what day and at whose request it was opened, signing the
15-10 deposition, and it shall remain on file with the agency for the
15-11 inspection of any party.>
15-12 <(k) Regardless of whether cross interrogatories have been
15-13 propounded, any party is entitled to use the deposition in the
15-14 contested case pending before the agency.>
15-15 <(l) A witness or deponent who is not a party and who is
15-16 subpoenaed or otherwise compelled to attend any hearing or
15-17 proceeding to give a deposition or to produce books, records,
15-18 papers, or other objects that may be necessary and proper for the
15-19 purposes of the proceeding under the authority of this section is
15-20 entitled to receive:>
15-21 <(1) mileage of 10 cents a mile, or a greater amount
15-22 as prescribed by agency rule, for going to, and returning from the
15-23 place of the hearing or the place where the deposition is taken, if
15-24 the place is more than 25 miles from the person's place of
15-25 residence; and>
16-1 <(2) a fee of $10 a day, or a greater amount as
16-2 prescribed by agency rule, for each day or part of a day the person
16-3 is necessarily present as a witness or deponent.>
16-4 <(m) Mileage and fees to which a witness is entitled under
16-5 this section shall be paid by the party or agency at whose request
16-6 the witness appears or the deposition is taken, on presentation of
16-7 proper vouchers sworn by the witness and approved by the agency.>
16-8 <(n) In the case of failure of a person to comply with a
16-9 subpoena or commission issued under the authority of this Act, the
16-10 agency issuing the subpoena or commission, acting through the
16-11 attorney general, or the party requesting the subpoena or
16-12 commission, may bring suit to enforce the subpoena or commission in
16-13 a district court, either in Travis County, or in the county in
16-14 which a hearing conducted by the agency issuing the subpoena or
16-15 commission may be held. The court, if it determines that good
16-16 cause exists for the issuance of the subpoena or commission, shall
16-17 order compliance with the requirements of the subpoena or
16-18 commission. Failure to obey the order of the court may be punished
16-19 by the court as contempt.>
16-20 <(o)> In contested cases, documentary evidence may be
16-21 received in the form of copies or excerpts if the original is not
16-22 readily available. On request, parties shall be given an
16-23 opportunity to compare the copy with the original.
16-24 (d) <(p)> In contested cases, a party may conduct
16-25 cross-examinations required for a full and true disclosure of the
17-1 facts.
17-2 (e) <(q)> In connection with any hearing held under the
17-3 provisions of this Act, official notice may be taken of all facts
17-4 judicially cognizable. In addition, notice may be taken of
17-5 generally recognized facts within the area of the agency's
17-6 specialized knowledge. Parties shall be notified either before or
17-7 during the hearing, or by reference in preliminary reports or
17-8 otherwise, of the material officially noticed, including any staff
17-9 memoranda or data, and they must be afforded an opportunity to
17-10 contest the material so noticed. The special skills or knowledge
17-11 of the agency and its staff may be utilized in evaluating the
17-12 evidence.
17-13 (f) <(r)> In contested cases, all parties are entitled to
17-14 the assistance of their counsel before administrative agencies.
17-15 This right may be expressly waived.
17-16 Sec. 14a. DISCOVERY; LIMITATIONS ON DISCOVERY<, ENTRY ON
17-17 PROPERTY; USE OF REPORTS AND STATEMENTS>. (a) All parties
17-18 appearing before agencies in contested case proceedings are
17-19 entitled as a minimum to utilize the following discovery procedures
17-20 as set forth in the Texas Rules of Civil Procedure as those rules
17-21 may subsequently be amended: interrogatories, requests for
17-22 admissions, depositions, discovery and production of documents, and
17-23 entry upon designated land and other property. Utilization of such
17-24 forms of discovery shall be in accordance with and subject to
17-25 limitations of the kind provided for discovery under the rules of
18-1 civil procedure. Agencies shall have authority to and shall adopt
18-2 rules implementing the use of these forms of discovery and
18-3 limitations.
18-4 (b) After notice and opportunity for a hearing, an agency
18-5 shall impose or cause by rule the power to be imposed the following
18-6 minimum sanctions for abuse of discovery or failure to obey an
18-7 agency order:
18-8 (1) disallow further discovery, in whole or in part,
18-9 by the noncompliant party;
18-10 (2) limit the noncompliant party's participation in
18-11 the proceeding;
18-12 (3) direct that certain facts be deemed admitted;
18-13 (4) prohibit submission of certain evidence or
18-14 testimony;
18-15 (5) strike pleadings, in full or in part, of the
18-16 noncompliant party;
18-17 (6) dismiss the action, in full or in part;
18-18 (7) suspend the processing of the application if the
18-19 applicant is noncompliant; or
18-20 (8) require the party and/or representative to pay
18-21 reasonable expenses, including attorney fees, incurred because of
18-22 noncompliance.
18-23 (c) The deposition of a member of an agency board may not be
18-24 taken after a date has been set for hearing. <Upon motion of any
18-25 party and upon notice to all other parties, and subject to such
19-1 limitations of the kind provided for discovery under the Rules of
19-2 Civil Procedure, the agency in which an action is pending may order
19-3 any party:>
19-4 <(1) to produce and permit the inspection and copying
19-5 or photographing by or on behalf of the moving party any of the
19-6 following which are in his possession, custody, or control: any
19-7 designated documents, papers, books, accounts, letters,
19-8 photographs, objects, or tangible things, not privileged, which
19-9 constitute or contain, or are reasonably calculated to lead to the
19-10 discovery of, evidence material to any matter involved in the
19-11 action; and>
19-12 <(2) to permit entry upon designated land or other
19-13 property in his possession or control for the purpose of
19-14 inspecting, measuring, surveying, or photographing the property or
19-15 any designated object or operation thereon which may be material to
19-16 any matter involved in the action.>
19-17 <(b) The order shall specify the time, place, and manner of
19-18 making the inspection, measurement, or survey and taking the copies
19-19 and photographs and may prescribe such terms and conditions as are
19-20 just.>
19-21 <(c) The identity and location of any potential party or
19-22 witness may be obtained from any communication or other paper in
19-23 the possession, custody, or control of a party, and any party may
19-24 be required to produce and permit the inspection and copying of the
19-25 reports, including factual observations and opinions, of an expert
20-1 who will be called as a witness. Provided, that the rights herein
20-2 granted shall not extend to other written statements of witnesses
20-3 or other written communications passing between agents or
20-4 representatives or the employees of any party to the suit or to
20-5 other communications between any party and his agents,
20-6 representatives, or other employees, where made subsequent to the
20-7 occurrence or transaction upon which the suit is based, and made in
20-8 connection with the prosecution, investigation, or defense of such
20-9 claim or the circumstances out of which same has arisen.>
20-10 <(d) Any person, whether or not a party, shall be entitled
20-11 to obtain, upon request, a copy of any statement he has previously
20-12 made concerning the action or its subject matter and which is in
20-13 the possession, custody, or control of any party. If the request
20-14 is refused, the person may move for an agency order under this
20-15 section. For the purpose of this paragraph, a statement previously
20-16 made is (1) a written statement signed or otherwise adopted or
20-17 approved by the person making it, or (2) a stenographic,
20-18 mechanical, electrical, or other recording, or a transcription
20-19 thereof, which is a substantially verbatim recital of an oral
20-20 statement by the person making it and contemporaneously recorded.>
20-21 Sec. 14b. SUBPOENAS: FEES. (a) On its own motion or on
20-22 the written request of any party to a contested case pending before
20-23 it, on a showing of good cause, and on deposit of sums that will
20-24 reasonably ensure payment of the amounts estimated to accrue under
20-25 Subsections (b) and (c) of this section, an agency shall issue a
21-1 subpoena addressed to the sheriff or any constable of the State of
21-2 Texas or other person authorized to serve and execute subpoenas as
21-3 provided in the Texas Rules of Civil Procedure to require the
21-4 attendance at a deposition or a hearing of witnesses and the
21-5 production of books, records, papers, or other objects as may be
21-6 necessary and proper for the purposes of the proceedings.
21-7 (b) A witness or deponent who is not a party and who is
21-8 subpoenaed or otherwise compelled to attend any hearing or
21-9 deposition or to produce books, records, papers, or other objects
21-10 that may be necessary and proper for the purposes of the proceeding
21-11 under the authority of this section is entitled to receive:
21-12 (1) mileage expenses in an amount equal to that
21-13 authorized for state employees pursuant to the current General
21-14 Appropriations Act, or a greater amount as prescribed by agency
21-15 rule, for going to and returning from the place of the hearing or
21-16 deposition, if the place is more than 25 miles from the person's
21-17 place of residence; and
21-18 (2) per diem expenses in an amount equal to that
21-19 authorized for state employees pursuant to the current General
21-20 Appropriations Act, or a greater amount as prescribed by agency
21-21 rule, for each day or part of a day the person is necessarily
21-22 present as a witness or deponent.
21-23 (c) Mileage and fees to which a witness or deponent is
21-24 entitled under this section shall be paid by the party or agency at
21-25 whose request the witness appears or the deposition is taken, on
22-1 presentation of proper vouchers sworn by the witness and approved
22-2 by the agency.
22-3 (d) In the case of failure to comply with a subpoena issued
22-4 under the authority of this Act, the agency issuing the subpoena,
22-5 acting through the attorney general, or the party requesting the
22-6 subpoena, may bring suit to enforce the subpoena in a district
22-7 court in Travis County or in the county in which a hearing
22-8 conducted by the agency issuing the subpoena may be held. The
22-9 court, if it determines that good cause exists for the issuance of
22-10 the subpoena, shall order compliance with the requirements of the
22-11 subpoena. Failure to obey the order of the court may be punished
22-12 by the court as contempt.
22-13 SECTION 4. Section 16, Administrative Procedure and Texas
22-14 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), is
22-15 amended to read as follows:
22-16 Sec. 16. Decisions and orders. (a) A final decision or
22-17 order adverse to a party in a contested case must be in writing <or
22-18 stated in the record>.
22-19 (b) A final decision must include findings of fact and
22-20 conclusions of law, separately stated. Findings of fact, if set
22-21 forth in statutory language, must be accompanied by a concise and
22-22 explicit statement of the underlying facts supporting the findings.
22-23 If<, in accordance with agency rules,> a party submitted proposed
22-24 findings of fact, the decision shall include a ruling on each
22-25 proposed finding. Parties shall be notified <either personally or>
23-1 by first class or certified mail of any decision or order. All
23-2 parties or their attorneys or other designated representatives of
23-3 record in agency proceedings shall furnish the agency with an
23-4 accurate mailing address. When an agency issues a final decision
23-5 or order ruling on a motion for rehearing, the agency shall send a
23-6 copy of that final decision or order by first class or certified
23-7 mail to the attorneys of record or to the parties or their other
23-8 designated representatives if not represented by an attorney of
23-9 record, <and> shall keep an appropriate record of that mailing, and
23-10 shall attach to the decision or order a certification of the date
23-11 of mailing and the names and addresses of those who were mailed
23-12 such decision or order. <If a party is not represented by an
23-13 attorney of record, then the agency shall send a copy of a final
23-14 decision or order ruling on a motion for rehearing by first class
23-15 mail to that party, and the agency shall keep an appropriate record
23-16 of that mailing. A party or attorney of record notified by mail of
23-17 a final decision or order as required by this section shall be
23-18 presumed to have been notified on the date such notice is mailed.>
23-19 (c) A decision is final, in the absence of a timely motion
23-20 for rehearing, on the expiration of the period for filing a motion
23-21 for rehearing, and is final and appealable on the date of mailing
23-22 <rendition> of the order overruling the motion for rehearing, or on
23-23 the date the motion is overruled by operation of law. If an agency
23-24 board includes a member who (1) receives no salary for his work as
23-25 a board member and who (2) resides outside Travis County, the board
24-1 may rule on a motion for rehearing at a meeting or by mail,
24-2 telephone, telegraph, or other suitable means of communication. If
24-3 an agency finds that an imminent peril to the public health,
24-4 safety, or welfare requires immediate effect of a final decision or
24-5 order in a contested case, it shall recite the finding in the
24-6 decision or order as well as the fact that the decision or order is
24-7 final and effective on the date of mailing <rendered>, in which
24-8 event the decision or order is final and appealable on the date of
24-9 mailing <rendered> and no motion for rehearing is required as a
24-10 prerequisite for appeal.
24-11 (d) <The final decision or order must be rendered within 60
24-12 days after the date the hearing is finally closed. In a contested
24-13 case heard by other than a majority of the officials of an agency,
24-14 the agency may prescribe a longer period of time within which the
24-15 final order or decision of the agency shall be issued. The
24-16 extension, if so prescribed, shall be announced at the conclusion
24-17 of the hearing.>
24-18 <(e)> Except as provided in Subsection (c) of this section,
24-19 a motion for rehearing is a prerequisite to an appeal. A motion
24-20 for rehearing must be filed by a party within 20 days after the
24-21 date <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. Replies to a motion for rehearing must be filed with the
24-24 agency within 30 days after the date the <party or his attorney of
24-25 record is notified of the final> decision or order is mailed as
25-1 required by Subsection (b) of this section, and agency action on
25-2 the motion must be taken within 45 days after the <date the party
25-3 or his attorney of record is notified of the> final decision or
25-4 order is mailed as required by Subsection (b) of this section. If
25-5 agency action is not taken within the 45-day period, the motion for
25-6 rehearing is overruled by operation of law 45 days after the date
25-7 the <party or his attorney of record is notified of the> final
25-8 decision or order is mailed as required by Subsection (b) of this
25-9 section. The agency may by written order extend the period of time
25-10 for filing the motions and replies and taking agency action, except
25-11 that an extension may not extend the period for agency action
25-12 beyond 90 days after the date the <party or his attorney of record
25-13 is notified of the> final decision or order is mailed as required
25-14 by Subsection (b) of this section. In the event of an extension,
25-15 the motion for rehearing is overruled by operation of law on the
25-16 date fixed by the order, or in the absence of a fixed date, 90 days
25-17 after the date the <party or his attorney of record is notified of
25-18 the> final decision or order is mailed as required by Subsection
25-19 (b) of this section.
25-20 (e) <(f)> The parties may by agreement with the approval of
25-21 the agency provide for a modification of the times provided in this
25-22 section.
25-23 SECTION 5. Section 18, Administrative Procedure and Texas
25-24 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), is
25-25 amended by amending Subsections (a) and (c) and adding Subsections
26-1 (d) through (m) to read as follows:
26-2 (a) When the grant, denial, <or> renewal, possible
26-3 revocation, suspension, modification, annulment, withdrawal, or
26-4 disciplinary action of a license is required to be preceded by
26-5 notice and opportunity for hearing, the provisions of this Act
26-6 concerning contested cases apply.
26-7 (c) No revocation, suspension, involuntary modification,
26-8 annulment, <or> withdrawal, or disciplinary action relating to <of>
26-9 any license is effective unless, prior to the institution of agency
26-10 proceedings:
26-11 (1) <,> the agency has served <gave> notice on <by
26-12 personal service or by registered or certified mail to> the
26-13 licensee of the facts or conduct alleged to warrant the intended
26-14 action by personal service or by certified mail, return receipt
26-15 requested with delivery restricted to the licensee, or by other
26-16 means that will be reasonably effective to give the licensee such
26-17 notice;<, and>
26-18 (2) proof of service of notice under this section is
26-19 on file with the agency; and
26-20 (3) the licensee was given an opportunity to show
26-21 compliance with all requirements of law for the retention of the
26-22 license either, at the licensee's option, in writing or through
26-23 personal appearance at an informal meeting with one or more
26-24 authorized representatives of the agency.
26-25 (d) An agency serving notice under Subsection (c) of this
27-1 section must inform the licensee of and provide access to all
27-2 factual information that it has and about which it has knowledge
27-3 concerning the allegations in the notice including but not limited
27-4 to all exculpatory information. Failure to provide exculpatory
27-5 information without a showing of good cause will cause the
27-6 automatic dismissal of any formal complaint without prejudice to
27-7 refiling the same charges.
27-8 (e) A licensee shall be allowed at least 20 days after the
27-9 date of service to respond to a notice issued pursuant to
27-10 Subsection (c) of this section.
27-11 (f) Evidence provided in response to a notice issued to the
27-12 licensee pursuant to Subsection (c) of this section of (1)
27-13 furnishing or offering or promising to furnish, or (2) accepting or
27-14 offering or promising to accept, a valuable consideration in
27-15 compromising or attempting to compromise a claim that was disputed
27-16 as to either validity or amount is not admissible to prove any
27-17 matter or invalidity of the matter. Evidence of conduct or
27-18 statements made in compromise negotiations is likewise not
27-19 admissible. This does not require the exclusion of any evidence
27-20 otherwise discoverable merely because it is presented in the course
27-21 of compromise negotiations nor exclusion when the evidence is
27-22 offered for another purpose, such as proving bias or prejudice or
27-23 interest of a witness or a party, negating a contention of undue
27-24 delay, or proving an effort to obstruct an investigation.
27-25 (g) A "complaint" in a licensing matter is a written
28-1 statement made by some credible person under oath, filed and
28-2 presented on behalf of an agency charging a person with having
28-3 committed an act or acts that if proven could affect the legal
28-4 rights or privileges of a party.
28-5 (h) A complaint must be in writing and shall allege with
28-6 reasonable certainty the specific act or acts relied on by the
28-7 agency to constitute a violation of a specific statute or rule.
28-8 The complaint shall be specific enough to enable a person of common
28-9 understanding to know what is meant by such complaint and with a
28-10 degree of certainty that will give the person who is the subject of
28-11 such complaint notice of the particular act or acts alleged to be a
28-12 violation of such statute or rule.
28-13 (i) In a contested case hearing on a complaint, it shall be
28-14 the primary duty of the agency not to find against a licensee but
28-15 to see that justice is done. An agency shall not suppress facts or
28-16 secret witnesses capable of establishing the truth of a fact or the
28-17 innocence of the licensee.
28-18 (j) In a licensing matter, the person who is the subject of
28-19 a complaint shall be duly served with a copy of the complaint and
28-20 shall be afforded an opportunity for hearing after reasonable
28-21 notice, served by the agency in a manner consistent with the
28-22 requirements for the service of citation under the Texas Rules of
28-23 Civil Procedure, of not less than 45 days, except in cases wherein
28-24 it is alleged, based on a reasonable investigation, that an
28-25 imminent peril to the public health, safety, and welfare exists.
29-1 (k) In this section:
29-2 (1) "Fees and other expenses" means:
29-3 (A) the reasonable expenses of witnesses
29-4 incurred in preparing to testify or in attending or testifying;
29-5 (B) a reasonable fee for the professional
29-6 services of an expert witness; and
29-7 (C) the reasonable costs of a study, analysis,
29-8 engineering report, test, or other project the administrative law
29-9 judge finds to be necessary for the preparation of the party's
29-10 case.
29-11 (2) "Party" means an individual, partnership,
29-12 corporation, association, or public or private organization other
29-13 than a state agency.
29-14 (3) "State agency" means a board, commission,
29-15 department, office, or other agency, other than an agency with more
29-16 than one statewide officeholder as its governing body, that:
29-17 (A) is in the executive branch of state
29-18 government;
29-19 (B) was created by the constitution or a statute
29-20 of this state; and
29-21 (C) has statewide jurisdiction.
29-22 (l)(1) A party to a contested case under this Act brought by
29-23 or against a state agency in which the agency asserts a cause of
29-24 action against the party, either originally or as a counterclaim or
29-25 cross-claim, is entitled to recover, in addition to all other costs
30-1 allowed by law or rule, fees, expenses, and reasonable attorney
30-2 fees incurred by the party in defending the agency's action if:
30-3 (A) the administrative law judge or agency where
30-4 applicable finds that the action is frivolous, unreasonable, or
30-5 without foundation; and
30-6 (B) the action is dismissed or a decision is
30-7 awarded favorably to the party.
30-8 (2) To recover under this Act, the party must file a
30-9 written motion alleging that the agency's claim is frivolous,
30-10 unreasonable, or without foundation. The motion may be filed at
30-11 any time after the filing of the complaint in which the agency's
30-12 cause of action is alleged.
30-13 (3) The motion must set forth the facts that justify
30-14 the party's claim.
30-15 (4) The motion must state that if the action is
30-16 dismissed or a decision is in favor of the party, the party intends
30-17 to submit a motion to an appropriate administrative law judge or
30-18 agency to recover fees, expenses, and reasonable attorney fees.
30-19 (m) The agency shall pay the fees and expenses from funds
30-20 appropriated for operation of the agency, funds appropriated for
30-21 the payment of fees and expenses, or other funds available for that
30-22 purpose.
30-23 SECTION 6. Subsections (b) and (d), Section 19,
30-24 Administrative Procedure and Texas Register Act (Article 6252-13a,
30-25 Vernon's Texas Civil Statutes), are amended to read as follows:
31-1 (b) Proceedings for review are instituted by filing a
31-2 petition within 30 days after the decision complained of is final
31-3 and appealable. Unless otherwise provided by statute:
31-4 (1) the petition is filed in a District Court of
31-5 Travis County, Texas;
31-6 (2) the agency shall be served with citation and a
31-7 copy of the petition. The party filing the petition shall send a
31-8 copy of the petition by certified mail to the attorneys of record
31-9 for all parties before the agency. If a party is not represented
31-10 by an attorney the petition shall be sent by certified mail to the
31-11 party or the party's designated representative of record. The
31-12 party filing the petition shall file a certificate of mailing with
31-13 the district clerk stating the name and addresses of those persons
31-14 to whom the petition was mailed <a copy of the petition must be
31-15 served on the agency and all parties of record in the proceedings
31-16 before the agency>; and
31-17 (3) the filing of the petition vacates an agency
31-18 decision for which trial de novo is the manner of review authorized
31-19 by law, but does not affect the enforcement of an agency decision
31-20 for which another manner of review is authorized.
31-21 (d) If the manner of review authorized by law for the
31-22 decision complained of is other than by trial de novo:
31-23 (1) after service of the petition on the agency, and
31-24 within the time permitted for filing an answer (or such additional
31-25 time as may be allowed by the court), the agency shall transmit to
32-1 the reviewing court the original or a certified copy of the entire
32-2 record of the proceeding under review and such agency record shall
32-3 be filed with the clerk of the court. Those portions of the record
32-4 sealed by the agency shall not be considered court records within
32-5 the meaning of Rule 76a, Texas Rules of Civil Procedure, as it
32-6 exists on the date of this enactment and as amended. By
32-7 stipulation of all parties to the review proceedings, the record
32-8 may be shortened. A party unreasonably refusing to stipulate to
32-9 limit the record may be taxed by the court for the additional
32-10 costs, unless the party is subject to a rule adopted under
32-11 Subsection (f) of this section requiring payment of all costs of
32-12 record preparation. The court may require or permit subsequent
32-13 corrections or additions to the record;
32-14 (2) any party may apply to the court for leave to
32-15 present additional evidence and the court, if it is satisfied that
32-16 the additional evidence is material and that there were good
32-17 reasons for the failure to present it in the proceeding before the
32-18 agency, may order that the additional evidence be taken before the
32-19 agency on conditions determined by the court. The agency may
32-20 modify its findings and decision by reason of the additional
32-21 evidence and shall file such evidence and any modifications, new
32-22 findings, or decisions with the reviewing court;
32-23 (3) the party seeking judicial review shall offer, and
32-24 the reviewing court shall admit, the agency record into evidence as
32-25 an exhibit. The review is conducted by the court sitting without a
33-1 jury and is confined to the agency record, except that the court
33-2 may receive evidence of procedural irregularities alleged to have
33-3 occurred before the agency but which are not reflected in the
33-4 record.
33-5 SECTION 7. All acts or statutes, specific or general in
33-6 nature, or parts thereof whether enacted before this Act or during
33-7 this session of the legislature, which conflict with the
33-8 Administrative Procedure and Texas Register Act (Article 6252-13a,
33-9 Vernon's Texas Civil Statutes) and the amendment made by this Act
33-10 shall be resolved in favor of the Administrative Procedure and
33-11 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
33-12 Statutes) and this Act, and, if such conflict cannot be resolved,
33-13 those acts are hereby expressly repealed to the extent of such
33-14 conflict.
33-15 SECTION 8. This Act takes effect September 1, 1993.
33-16 SECTION 9. The importance of this legislation and the
33-17 crowded condition of the calendars in both houses create an
33-18 emergency and an imperative public necessity that the
33-19 constitutional rule requiring bills to be read on three several
33-20 days in each house be suspended, and this rule is hereby suspended.