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.