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