1-1 By: Harris of Dallas, Rosson S.B. No. 1298
1-2 (In the Senate - Filed March 22, 1993; March 22, 1993, read
1-3 first time and referred to Committee on State Affairs; May 7, 1993,
1-4 reported adversely, with favorable Committee Substitute by the
1-5 following vote: Yeas 7, Nays 0; May 7, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Harris of Dallas x
1-9 Rosson x
1-10 Carriker x
1-11 Henderson x
1-12 Leedom x
1-13 Lucio x
1-14 Luna x
1-15 Nelson x
1-16 Patterson x
1-17 Shelley x
1-18 Sibley x
1-19 West x
1-20 Whitmire x
1-21 COMMITTEE SUBSTITUTE FOR S.B. No. 1298 By: Harris of Dallas
1-22 A BILL TO BE ENTITLED
1-23 AN ACT
1-24 relating to amending certain provisions concerning minimum
1-25 standards of uniform practice and procedure for state agencies
1-26 contained in the Administrative Procedure and Texas Register Act.
1-27 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-28 SECTION 1. Section 5, Administrative Procedure and Texas
1-29 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), is
1-30 amended to read as follows:
1-31 Sec. 5. Procedure for adoption of rules. (a) Prior to the
1-32 adoption of any rule, an agency shall give at least 30 days' notice
1-33 of its intended action. Notice of the proposed rule shall be filed
1-34 with the secretary of state and published by the secretary of state
1-35 in the Texas Register. The notice must include:
1-36 (1) a brief explanation of the proposed rule;
1-37 (2) the text of the proposed rule, except any portion
1-38 omitted as provided in Section 6(c) of this Act, prepared in a
1-39 manner to indicate the words to be added or deleted from the
1-40 current text, if any;
1-41 (3) a statement of the statutory or other authority
1-42 under which the rule is proposed to be promulgated, including a
1-43 concise explanation of the particular statutory or other provisions
1-44 under which the rule is proposed, the section or article of the
1-45 code affected, and a certification that the proposed rule has been
1-46 reviewed by legal counsel and found to be within the agency's
1-47 authority to adopt;
1-48 (4) <a fiscal note showing the name and title of the
1-49 officer or employee responsible for preparing or approving it and
1-50 stating for each year for the first five years that the rule will
1-51 be in effect:>
1-52 <(A) the additional estimated cost to the state
1-53 and to local governments expected as a result of enforcing or
1-54 administering the rule;>
1-55 <(B) estimated reductions in costs to the state
1-56 and to local governments as a result of enforcing or administering
1-57 the rule;>
1-58 <(C) estimated loss or increase in revenue to
1-59 the state or to local governments as a result of enforcing or
1-60 administering the rule; and>
1-61 <(D) if applicable, that enforcing or
1-62 administering the rule will have no foreseeable implications in any
1-63 of the preceding respects;>
1-64 <(5) a public benefit-cost note showing the name and
1-65 title of the officer or employee responsible for preparing or
1-66 approving it and stating for each year for the first five years
1-67 that the rule will be in effect:>
1-68 <(A) the public benefits to be expected as a
2-1 result of adoption of the proposed rule; and>
2-2 <(B) the probable economic cost to persons who
2-3 are required to comply with the rule;>
2-4 <(6)> the local employment impact statement prepared
2-5 under Section 4A of this Act, if required;
2-6 (5) <(7)> a request for comments on the proposed rule
2-7 from any interested person; <and>
2-8 (6) <(8)> a statement that a regulatory analysis will
2-9 be prepared if requested as provided in Subsection (b)(1) of this
2-10 section and any other statement required by law and that any
2-11 interested person may obtain a copy of the regulatory analysis by
2-12 contacting the agency.
2-13 (b)(1) An agency shall issue a regulatory analysis of a
2-14 proposed rule if, within 20 days after the published notice of
2-15 proposed rule adoption, the agency receives a written request for
2-16 the analysis from at least 25 persons, a governmental subdivision
2-17 or agency, or an association having at least 25 members.
2-18 (2) The written request may require the agency to
2-19 provide any or all of the following in its regulatory analysis:
2-20 (A) a description of the classes of persons who
2-21 probably will be affected by the proposed rule, including classes
2-22 that will bear the costs of the proposed rule and classes that will
2-23 benefit from the proposed rule;
2-24 (B) a description of the probable quantitative
2-25 and qualitative impact of the proposed rule, economic or otherwise,
2-26 on affected classes of persons;
2-27 (C) the probable costs to the agency and to any
2-28 other agency of the implementation and enforcement of the proposed
2-29 rule and any anticipated effect on state revenues;
2-30 (D) a comparison of the probable costs and
2-31 benefits of the proposed rule to the probable costs and benefits of
2-32 inaction;
2-33 (E) a determination of whether there are less
2-34 costly methods or less intrusive methods for achieving the purpose
2-35 of the proposed rule; and
2-36 (F) a description of any alternative methods for
2-37 achieving the purpose of the proposed rule that were seriously
2-38 considered by the agency and the reasons why they were rejected in
2-39 favor of the proposed rule.
2-40 (3) The regulatory analysis must be made available at
2-41 least 20 days before the earliest of:
2-42 (A) the end of the period during which persons
2-43 may make written submissions on the proposed rule;
2-44 (B) the end of the period during which an oral
2-45 proceeding may be requested; or
2-46 (C) the date of any required oral proceeding on
2-47 the proposed rule.
2-48 (c) Except as provided by Subsection (j) <(h)> of this
2-49 section, each notice of a proposed rule becomes effective as notice
2-50 when published in the register. The notice shall be mailed to all
2-51 persons who have made timely written requests of the agency for
2-52 advance notice of its rulemaking proceedings. However, failure to
2-53 mail the notice does not invalidate any actions taken or rules
2-54 adopted. Except as provided by this subsection, a proposed rule is
2-55 automatically withdrawn six months after the date of publication of
2-56 notice of the proposed rule in the Texas Register if the agency has
2-57 failed within that time to adopt, adopt as amended, or withdraw the
2-58 proposed rule.
2-59 (d) <(c)> Prior to the adoption of any rule, an agency shall
2-60 afford all interested persons reasonable opportunity to submit
2-61 data, views, or arguments, orally or in writing. In the case of
2-62 substantive rules, opportunity for public hearing must be granted
2-63 if requested by at least 25 persons, by a governmental subdivision
2-64 or agency, or by an association having at least 25 members. The
2-65 agency shall consider fully all written and oral submissions
2-66 concerning the proposed rule. On adoption of a rule, if requested
2-67 to do so as provided in Subsection b(1) of this section, the agency
2-68 shall, either prior to the adoption or within 30 days after
2-69 adoption, issue a statement containing the following:
2-70 (1) a summary of comments received from persons
3-1 interested in the rule showing the names of interested groups or
3-2 associations offering comment on the rule and whether they were for
3-3 or against its adoption;
3-4 (2) a statement of the principal reasons for and
3-5 against adoption of the rule;
3-6 (3) a statement of the reasons for overruling the
3-7 consideration urged against the rule;
3-8 (4) a notice that such statement will be kept by the
3-9 agency as a part of the permanent files of the agency, available
3-10 for review, as well as the name and address of the person to be
3-11 contacted to obtain such statement <the agency, if requested to do
3-12 so by an interested person either prior to adoption or within 30
3-13 days after adoption, shall issue a concise statement of the
3-14 principal reasons for and against its adoption, incorporating in
3-15 the statement its reasons for overruling the considerations urged
3-16 against its adoption.>
3-17 <(c-1) The agency order finally adopting a rule must
3-18 include:>
3-19 <(1) a reasoned justification of the rule, including a
3-20 summary of comments received from parties interested in the rule
3-21 and showing the names of any interested group or association
3-22 offering comment on the rule and whether they were for or against
3-23 its adoption, and also including a restatement of the rule's
3-24 factual bases and the reasons why the agency disagrees with party
3-25 submissions and proposals;>
3-26 <(2) a concise restatement of the particular statutory
3-27 provisions under which the rule is adopted and of how the agency
3-28 interprets these provisions as authorizing or requiring the rule;
3-29 and>
3-30 <(3) a certification that the rule, as adopted, has
3-31 been reviewed by legal counsel and found to be a valid exercise of
3-32 the agency's legal authority>.
3-33 (e) <(d)> If an agency finds that an imminent peril to the
3-34 public health, safety, or welfare or a requirement of state or
3-35 federal law requires adoption of a rule on fewer than 30 days'
3-36 notice and states in writing its reasons for that finding, it may
3-37 proceed without prior notice or hearing or on any abbreviated
3-38 notice and hearing that it finds practicable to adopt an emergency
3-39 rule. The agency must set forth the requisite finding in the
3-40 preamble to the rule. The rule may be effective for a period of
3-41 not longer than 120 days renewable once for a period not exceeding
3-42 60 days, but the adoption of an identical rule under Subsections
3-43 (a) and (c) of this section is not precluded. An emergency rule
3-44 adopted under the provisions of this subsection, and the agency's
3-45 written reasons for the adoption, shall be filed in the office of
3-46 the secretary of state for publication in the Texas Register. In
3-47 an action contesting a rule adopted under this subsection, the
3-48 burden is on the agency to demonstrate the existence of the
3-49 emergency that is claimed to exist.
3-50 (f) <(e)> No rule hereafter adopted is valid unless adopted
3-51 in substantial compliance with this section. A proceeding to
3-52 contest any rule on the ground of noncompliance with the procedural
3-53 requirements of this section must be commenced within two years
3-54 after the effective date of the rule.
3-55 (g)(1) An agency may not adopt a rule that is substantially
3-56 different from the proposed rule contained in the published notice
3-57 of proposed rule adoption.
3-58 (2) In determining whether an adopted rule is
3-59 substantially different from the published proposed rule on which
3-60 it is required to be based, the following must be considered:
3-61 (A) the extent to which the adopted rule affects
3-62 persons other than those who would have been affected by the
3-63 published proposed rule;
3-64 (B) the extent to which the subject matter of
3-65 the adopted rule or the issues determined by that rule are
3-66 different from the subject matter or issues involved in the
3-67 published proposed rule; and
3-68 (C) the extent to which the effects of the
3-69 adopted rule differ from the effects of the published proposed rule
3-70 had it been adopted instead.
4-1 (h) <(f)> An agency may use informal conferences and
4-2 consultations as means of obtaining the viewpoints and advice of
4-3 interested persons concerning contemplated rulemaking. Each agency
4-4 also is authorized to appoint committees of experts or interested
4-5 persons or representatives of the general public to advise it with
4-6 respect to any contemplated rulemaking. The powers of these
4-7 committees are advisory only.
4-8 (i) <(g)> Each house of the legislature shall adopt rules
4-9 establishing a process under which the presiding officer of each
4-10 house shall refer each proposed agency rule to the appropriate
4-11 standing committee for review prior to adoption of the rule. When
4-12 an agency files notice of a proposed rule with the secretary of
4-13 state pursuant to Subsection (a) of this section, it shall also
4-14 deliver a copy of the notice to the lieutenant governor and the
4-15 speaker. On the vote of a majority of its members, a standing
4-16 committee may transmit to the agency a statement supporting or
4-17 opposing adoption of a proposed rule.
4-18 (j) <(h)> Notice of the adoption of a proposed rule by the
4-19 Commission on Jail Standards or the Commission on Law Enforcement
4-20 Officer Standards and Education that affects a law enforcement
4-21 agency of the state or a political subdivision of the state does
4-22 not become effective until the notice is published in compliance
4-23 with Subsection (c) <(b)> of this section and is mailed to each law
4-24 enforcement agency that may be affected by the proposed rule.
4-25 (k) A rule shall be held invalid only if the legal rights of
4-26 the plaintiff have been or will be interfered with or impaired
4-27 because the rule:
4-28 (1) is in violation of constitutional or statutory
4-29 provisions;
4-30 (2) is in excess of the statutory authority of the
4-31 agency;
4-32 (3) was not adopted in substantial compliance with the
4-33 procedures set forth in this section; or
4-34 (4) lacks any legitimate reason to support it.
4-35 SECTION 2. Subsection (j), Section 13, Administrative
4-36 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
4-37 Civil Statutes), is amended to read as follows:
4-38 (j) This subsection applies only to an administrative law
4-39 judge employed by the State Office of Administrative Hearings. The
4-40 administrative law judge who conducts the hearing shall consider
4-41 any applicable agency rules or policies in conducting the hearing,
4-42 but may not be supervised by the agency that the contested case is
4-43 before. The agency shall provide the administrative law judge with
4-44 a written statement of applicable rules or policies. An agency may
4-45 not attempt to influence the finding of facts or the administrative
4-46 law judge's application of the law in any contested case other than
4-47 by proper evidence and legal argument. An agency may not vacate or
4-48 modify an order issued by an administrative law judge nor change a
4-49 finding of fact or conclusion of law made by the administrative law
4-50 judge unless the agency in its order states why such finding or
4-51 conclusion is changed <or vacate or modify an order issued by the
4-52 administrative law judge only for reasons of policy and must state
4-53 in writing the reason and legal basis for the change>.
4-54 SECTION 3. The Administrative Procedure and Texas Register
4-55 Act (Article 6252-13a, Vernon's Texas Civil Statutes) is amended by
4-56 amending Sections 14 and 14a and adding Section 14b to read as
4-57 follows:
4-58 Sec. 14. Rules of evidence, official notice. (a) In
4-59 contested cases, irrelevant, immaterial, or unduly repetitious
4-60 evidence shall be excluded. The rules of evidence as applied in
4-61 nonjury civil cases in the district courts of this state shall be
4-62 followed. When necessary to ascertain facts not reasonably
4-63 susceptible of proof under those rules, evidence not admissible
4-64 thereunder may be admitted, except where precluded by statute, if
4-65 it is of a type commonly relied upon by reasonably prudent men in
4-66 the conduct of their affairs. Agencies shall give effect to the
4-67 rules of privilege recognized by law. Objections to evidentiary
4-68 offers may be made and shall be noted in the record. Subject to
4-69 these requirements, if a hearing will be expedited and the
4-70 interests of the parties will not be prejudiced substantially, any
5-1 part of the evidence may be received in written form.
5-2 (b) In connection with any contested case held under the
5-3 provisions of this Act, an agency may swear witnesses and take
5-4 their testimony under oath.
5-5 (c) <On its own motion or on the written request of any
5-6 party to a contested case pending before it, on a showing of good
5-7 cause, and on deposit of sums that will reasonably insure payment
5-8 of the amounts estimated to accrue under Subsections (l)(1) and (2)
5-9 of this section, an agency shall issue a subpoena addressed to the
5-10 sheriff or any constable to require the attendance of witnesses and
5-11 the production of books, records, papers, or other objects as may
5-12 be necessary and proper for the purposes of the proceedings.>
5-13 <(d) On its own motion or on the written request of any
5-14 party to a contested case pending before it and on deposit of sums
5-15 that will reasonably insure payment of the amounts estimated to
5-16 accrue under Subsections (l)(1) and (2) of this section, an agency
5-17 shall issue a commission, addressed to the several officers
5-18 authorized by statute to take depositions, to require that the
5-19 deposition of a witness be taken, which commission shall authorize
5-20 the issuance of any subpoenas necessary to require that the witness
5-21 appear and produce, at the time the deposition is taken, books,
5-22 records, papers, or other objects as may be necessary and proper
5-23 for the purposes of the proceeding. The deposition of a member of
5-24 an agency board may not be taken after a date has been set for
5-25 hearing.>
5-26 <(e) The place of taking the depositions shall be in the
5-27 county of the witness' residence, or where the witness is employed
5-28 or regularly transacts business in person. The commission shall
5-29 authorize and require the officer or officers to whom it is
5-30 addressed, or either of them, to examine the witness before him on
5-31 the date and at the place named in the commission and to take
5-32 answers under oath to questions which may be propounded to the
5-33 witness by the parties to the proceeding, the agency, or the
5-34 attorneys for the parties or the agency. The commission shall
5-35 require the witness to remain in attendance from day to day until
5-36 the deposition is begun and completed.>
5-37 <(f) The witness shall be carefully examined, the testimony
5-38 shall be reduced to writing or typewriting by the officer taking
5-39 the deposition, or by some person under the officer's persons
5-40 supervision, or by the deponent in the officer's presence, and by
5-41 no other person, and shall, after it has been reduced to writing or
5-42 typewriting, be subscribed by the deponent.>
5-43 <(g) The officer taking the oral deposition may not sustain
5-44 objections to any of the testimony taken, or exclude any of it, and
5-45 any of the parties or attorneys engaged in taking testimony have
5-46 their objections reserved for the action of the agency before which
5-47 the matter is pending. The administrator or other officer
5-48 conducting the hearing is not confined to objections made at the
5-49 taking of the testimony.>
5-50 <(h) When the testimony is fully transcribed, the deposition
5-51 shall be submitted to the witness for examination and read to or by
5-52 the witness, unless the examination and reading are waived by the
5-53 witness and by the parties in writing. However, if the witness is
5-54 a party to the contested case pending before the agency with an
5-55 attorney of record, the deposition officer shall notify the
5-56 attorney of record in writing by registered mail or certified mail
5-57 that the deposition is ready for examination and reading at the
5-58 office of the deposition officer, and if the witness does not
5-59 appear and examine, read, and sign the deposition within 20 days
5-60 after the mailing of the notice, the deposition shall be returned
5-61 as provided in this Act for unsigned depositions. In any event,
5-62 the witness must sign the deposition at least three days prior to
5-63 the hearing, or it shall be returned as provided in this Act for
5-64 unsigned depositions. Any changes in form or substance which the
5-65 witness desires to make shall be entered on the deposition by the
5-66 officer with a statement of the reasons given by the witness for
5-67 making them. The deposition shall then be signed by the witness,
5-68 unless the parties present at the taking of the deposition by
5-69 stipulation waive the signing or the witness is ill, cannot be
5-70 found, or refuses to sign. If the deposition is not signed by the
6-1 witness, the officer shall sign it and state on the record the fact
6-2 of the waiver, illness, or absence of the witness or the fact of
6-3 the refusal to sign, together with the reason, if any, given for
6-4 failure to sign. The deposition may then be used as fully as
6-5 though signed.>
6-6 <(i) A deposition may be returned to the agency before which
6-7 the contested case is pending either by mail, or by a party
6-8 interested in taking the deposition, or by any other person. If
6-9 returned by mail, the agency shall endorse on the deposition that
6-10 it was received from the post office and shall cause the agency
6-11 employee so receiving the deposition to sign it. If not sent by
6-12 mail, the person delivering it to the agency shall make affidavit
6-13 before the agency that he received it from the hands of the officer
6-14 before whom it was taken, that it has not been out of his
6-15 possession since, and that it has undergone no alteration.>
6-16 <(j) A deposition, after being filed with the agency, may be
6-17 opened by any employee of the agency at the request of either party
6-18 or his counsel. The employee shall endorse on the deposition on
6-19 what day and at whose request it was opened, signing the
6-20 deposition, and it shall remain on file with the agency for the
6-21 inspection of any party.>
6-22 <(k) Regardless of whether cross interrogatories have been
6-23 propounded, any party is entitled to use the deposition in the
6-24 contested case pending before the agency.>
6-25 <(l) A witness or deponent who is not a party and who is
6-26 subpoenaed or otherwise compelled to attend any hearing or
6-27 proceeding to give a deposition or to produce books, records,
6-28 papers, or other objects that may be necessary and proper for the
6-29 purposes of the proceeding under the authority of this section is
6-30 entitled to receive:>
6-31 <(1) mileage of 10 cents a mile, or a greater amount
6-32 as prescribed by agency rule, for going to, and returning from the
6-33 place of the hearing or the place where the deposition is taken, if
6-34 the place is more than 25 miles from the person's place of
6-35 residence; and>
6-36 <(2) a fee of $10 a day, or a greater amount as
6-37 prescribed by agency rule, for each day or part of a day the person
6-38 is necessarily present as a witness or deponent.>
6-39 <(m) Mileage and fees to which a witness is entitled under
6-40 this section shall be paid by the party or agency at whose request
6-41 the witness appears or the deposition is taken, on presentation of
6-42 proper vouchers sworn by the witness and approved by the agency.>
6-43 <(n) In the case of failure of a person to comply with a
6-44 subpoena or commission issued under the authority of this Act, the
6-45 agency issuing the subpoena or commission, acting through the
6-46 attorney general, or the party requesting the subpoena or
6-47 commission, may bring suit to enforce the subpoena or commission in
6-48 a district court, either in Travis County, or in the county in
6-49 which a hearing conducted by the agency issuing the subpoena or
6-50 commission may be held. The court, if it determines that good
6-51 cause exists for the issuance of the subpoena or commission, shall
6-52 order compliance with the requirements of the subpoena or
6-53 commission. Failure to obey the order of the court may be punished
6-54 by the court as contempt.>
6-55 <(o)> In contested cases, documentary evidence may be
6-56 received in the form of copies or excerpts if the original is not
6-57 readily available. On request, parties shall be given an
6-58 opportunity to compare the copy with the original.
6-59 (d) <(p)> In contested cases, a party may conduct
6-60 cross-examinations required for a full and true disclosure of the
6-61 facts.
6-62 (e) <(q)> In connection with any hearing held under the
6-63 provisions of this Act, official notice may be taken of all facts
6-64 judicially cognizable. In addition, notice may be taken of
6-65 generally recognized facts within the area of the agency's
6-66 specialized knowledge. Parties shall be notified either before or
6-67 during the hearing, or by reference in preliminary reports or
6-68 otherwise, of the material officially noticed, including any staff
6-69 memoranda or data, and they must be afforded an opportunity to
6-70 contest the material so noticed. The special skills or knowledge
7-1 of the agency and its staff may be utilized in evaluating the
7-2 evidence.
7-3 (f) <(r)> In contested cases, all parties are entitled to
7-4 the assistance of their counsel before administrative agencies.
7-5 This right may be expressly waived.
7-6 Sec. 14a. DISCOVERY; LIMITATIONS ON DISCOVERY<, ENTRY ON
7-7 PROPERTY; USE OF REPORTS AND STATEMENTS>. (a) All parties
7-8 appearing before agencies in contested case proceedings are
7-9 entitled as a minimum to utilize the following discovery procedures
7-10 as set forth in the Texas Rules of Civil Procedure as those rules
7-11 may subsequently be amended: interrogatories, requests for
7-12 admissions, depositions, discovery and production of documents, and
7-13 entry upon designated land and other property. Utilization of such
7-14 forms of discovery shall be in accordance with and subject to
7-15 limitations of the kind provided for discovery under the rules of
7-16 civil procedure. Agencies shall have authority to and shall adopt
7-17 rules implementing the use of these forms of discovery and
7-18 limitations.
7-19 (b) After notice and opportunity for a hearing, an agency
7-20 shall impose or cause by rule the power to be imposed the following
7-21 minimum sanctions for abuse of discovery or failure to obey an
7-22 agency order:
7-23 (1) disallow further discovery, in whole or in part,
7-24 by the noncompliant party;
7-25 (2) limit the noncompliant party's participation in
7-26 the proceeding;
7-27 (3) direct that certain facts be deemed admitted;
7-28 (4) prohibit submission of certain evidence or
7-29 testimony;
7-30 (5) strike pleadings, in full or in part, of the
7-31 noncompliant party;
7-32 (6) dismiss the action, in full or in part;
7-33 (7) suspend the processing of the application if the
7-34 applicant is noncompliant; or
7-35 (8) require the party and/or representative to pay
7-36 reasonable expenses, including attorney fees, incurred because of
7-37 noncompliance.
7-38 (c) The deposition of a member of an agency board may not be
7-39 taken after a date has been set for hearing. <Upon motion of any
7-40 party and upon notice to all other parties, and subject to such
7-41 limitations of the kind provided for discovery under the Rules of
7-42 Civil Procedure, the agency in which an action is pending may order
7-43 any party:>
7-44 <(1) to produce and permit the inspection and copying
7-45 or photographing by or on behalf of the moving party any of the
7-46 following which are in his possession, custody, or control: any
7-47 designated documents, papers, books, accounts, letters,
7-48 photographs, objects, or tangible things, not privileged, which
7-49 constitute or contain, or are reasonably calculated to lead to the
7-50 discovery of, evidence material to any matter involved in the
7-51 action; and>
7-52 <(2) to permit entry upon designated land or other
7-53 property in his possession or control for the purpose of
7-54 inspecting, measuring, surveying, or photographing the property or
7-55 any designated object or operation thereon which may be material to
7-56 any matter involved in the action.>
7-57 <(b) The order shall specify the time, place, and manner of
7-58 making the inspection, measurement, or survey and taking the copies
7-59 and photographs and may prescribe such terms and conditions as are
7-60 just.>
7-61 <(c) The identity and location of any potential party or
7-62 witness may be obtained from any communication or other paper in
7-63 the possession, custody, or control of a party, and any party may
7-64 be required to produce and permit the inspection and copying of the
7-65 reports, including factual observations and opinions, of an expert
7-66 who will be called as a witness. Provided, that the rights herein
7-67 granted shall not extend to other written statements of witnesses
7-68 or other written communications passing between agents or
7-69 representatives or the employees of any party to the suit or to
7-70 other communications between any party and his agents,
8-1 representatives, or other employees, where made subsequent to the
8-2 occurrence or transaction upon which the suit is based, and made in
8-3 connection with the prosecution, investigation, or defense of such
8-4 claim or the circumstances out of which same has arisen.>
8-5 <(d) Any person, whether or not a party, shall be entitled
8-6 to obtain, upon request, a copy of any statement he has previously
8-7 made concerning the action or its subject matter and which is in
8-8 the possession, custody, or control of any party. If the request
8-9 is refused, the person may move for an agency order under this
8-10 section. For the purpose of this paragraph, a statement previously
8-11 made is (1) a written statement signed or otherwise adopted or
8-12 approved by the person making it, or (2) a stenographic,
8-13 mechanical, electrical, or other recording, or a transcription
8-14 thereof, which is a substantially verbatim recital of an oral
8-15 statement by the person making it and contemporaneously recorded.>
8-16 Sec. 14b. SUBPOENAS: FEES. (a) On its own motion or on
8-17 the written request of any party to a contested case pending before
8-18 it, on a showing of good cause, and on deposit of sums that will
8-19 reasonably ensure payment of the amounts estimated to accrue under
8-20 Subsections (b) and (c) of this section, an agency shall issue a
8-21 subpoena addressed to the sheriff or any constable of the State of
8-22 Texas or other person authorized to serve and execute subpoenas as
8-23 provided in the Texas Rules of Civil Procedure to require the
8-24 attendance at a deposition or a hearing of witnesses and the
8-25 production of books, records, papers, or other objects as may be
8-26 necessary and proper for the purposes of the proceedings.
8-27 (b) A witness or deponent who is not a party and who is
8-28 subpoenaed or otherwise compelled to attend any hearing or
8-29 deposition or to produce books, records, papers, or other objects
8-30 that may be necessary and proper for the purposes of the proceeding
8-31 under the authority of this section is entitled to receive:
8-32 (1) mileage expenses in an amount equal to that
8-33 authorized for state employees pursuant to the current General
8-34 Appropriations Act, or a greater amount as prescribed by agency
8-35 rule, for going to and returning from the place of the hearing or
8-36 deposition, if the place is more than 25 miles from the person's
8-37 place of residence; and
8-38 (2) per diem expenses in an amount equal to that
8-39 authorized for state employees pursuant to the current General
8-40 Appropriations Act, or a greater amount as prescribed by agency
8-41 rule, for each day or part of a day the person is necessarily
8-42 present as a witness or deponent.
8-43 (c) Mileage and fees to which a witness or deponent is
8-44 entitled under this section shall be paid by the party or agency at
8-45 whose request the witness appears or the deposition is taken, on
8-46 presentation of proper vouchers sworn by the witness and approved
8-47 by the agency.
8-48 (d) In the case of failure to comply with a subpoena issued
8-49 under the authority of this Act, the agency issuing the subpoena,
8-50 acting through the attorney general, or the party requesting the
8-51 subpoena, may bring suit to enforce the subpoena in a district
8-52 court in Travis County or in the county in which a hearing
8-53 conducted by the agency issuing the subpoena may be held. The
8-54 court, if it determines that good cause exists for the issuance of
8-55 the subpoena, shall order compliance with the requirements of the
8-56 subpoena. Failure to obey the order of the court may be punished
8-57 by the court as contempt.
8-58 SECTION 4. Section 16, Administrative Procedure and Texas
8-59 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), is
8-60 amended to read as follows:
8-61 Sec. 16. Decisions and orders. (a) A final decision or
8-62 order adverse to a party in a contested case must be in writing <or
8-63 stated in the record>.
8-64 (b) A final decision must include findings of fact and
8-65 conclusions of law, separately stated. Findings of fact, if set
8-66 forth in statutory language, must be accompanied by a concise and
8-67 explicit statement of the underlying facts supporting the findings.
8-68 If<, in accordance with agency rules,> a party submitted proposed
8-69 findings of fact, the decision shall include a ruling on each
8-70 proposed finding. Parties shall be notified <either personally or>
9-1 by first class or certified mail of any decision or order. All
9-2 parties or their attorneys or other designated representatives of
9-3 record in agency proceedings shall furnish the agency with an
9-4 accurate mailing address. When an agency issues a final decision
9-5 or order ruling on a motion for rehearing, the agency shall send a
9-6 copy of that final decision or order by first class or certified
9-7 mail to the attorneys of record or to the parties or their other
9-8 designated representatives if not represented by an attorney of
9-9 record, <and> shall keep an appropriate record of that mailing, and
9-10 shall attach to the decision or order a certification of the date
9-11 of mailing and the names and addresses of those who were mailed
9-12 such decision or order. <If a party is not represented by an
9-13 attorney of record, then the agency shall send a copy of a final
9-14 decision or order ruling on a motion for rehearing by first class
9-15 mail to that party, and the agency shall keep an appropriate record
9-16 of that mailing. A party or attorney of record notified by mail of
9-17 a final decision or order as required by this section shall be
9-18 presumed to have been notified on the date such notice is mailed.>
9-19 (c) A decision is final, in the absence of a timely motion
9-20 for rehearing, on the expiration of the period for filing a motion
9-21 for rehearing, and is final and appealable on the date of mailing
9-22 <rendition> of the order overruling the motion for rehearing, or on
9-23 the date the motion is overruled by operation of law. If an agency
9-24 board includes a member who (1) receives no salary for his work as
9-25 a board member and who (2) resides outside Travis County, the board
9-26 may rule on a motion for rehearing at a meeting or by mail,
9-27 telephone, telegraph, or other suitable means of communication. If
9-28 an agency finds that an imminent peril to the public health,
9-29 safety, or welfare requires immediate effect of a final decision or
9-30 order in a contested case, it shall recite the finding in the
9-31 decision or order as well as the fact that the decision or order is
9-32 final and effective on the date of mailing <rendered>, in which
9-33 event the decision or order is final and appealable on the date of
9-34 mailing <rendered> and no motion for rehearing is required as a
9-35 prerequisite for appeal.
9-36 (d) <The final decision or order must be rendered within 60
9-37 days after the date the hearing is finally closed. In a contested
9-38 case heard by other than a majority of the officials of an agency,
9-39 the agency may prescribe a longer period of time within which the
9-40 final order or decision of the agency shall be issued. The
9-41 extension, if so prescribed, shall be announced at the conclusion
9-42 of the hearing.>
9-43 <(e)> Except as provided in Subsection (c) of this section,
9-44 a motion for rehearing is a prerequisite to an appeal. A motion
9-45 for rehearing must be filed by a party within 20 days after the
9-46 date <the party or his attorney of record is notified of> the final
9-47 decision or order is mailed as required by Subsection (b) of this
9-48 section. Replies to a motion for rehearing must be filed with the
9-49 agency within 30 days after the date the <party or his attorney of
9-50 record is notified of the final> decision or order is mailed as
9-51 required by Subsection (b) of this section, and agency action on
9-52 the motion must be taken within 45 days after the <date the party
9-53 or his attorney of record is notified of the> final decision or
9-54 order is mailed as required by Subsection (b) of this section. If
9-55 agency action is not taken within the 45-day period, the motion for
9-56 rehearing is overruled by operation of law 45 days after the date
9-57 the <party or his attorney of record is notified of the> final
9-58 decision or order is mailed as required by Subsection (b) of this
9-59 section. The agency may by written order extend the period of time
9-60 for filing the motions and replies and taking agency action, except
9-61 that an extension may not extend the period for agency action
9-62 beyond 90 days after the date the <party or his attorney of record
9-63 is notified of the> final decision or order is mailed as required
9-64 by Subsection (b) of this section. In the event of an extension,
9-65 the motion for rehearing is overruled by operation of law on the
9-66 date fixed by the order, or in the absence of a fixed date, 90 days
9-67 after the date the <party or his attorney of record is notified of
9-68 the> final decision or order is mailed as required by Subsection
9-69 (b) of this section.
9-70 (e) <(f)> The parties may by agreement with the approval of
10-1 the agency provide for a modification of the times provided in this
10-2 section.
10-3 SECTION 5. Section 18, Administrative Procedure and Texas
10-4 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), is
10-5 amended by amending Subsections (a) and (c) and adding Subsections
10-6 (d) through (m) to read as follows:
10-7 (a) When the grant, denial, <or> renewal, possible
10-8 revocation, suspension, modification, annulment, withdrawal, or
10-9 disciplinary action of a license is required to be preceded by
10-10 notice and opportunity for hearing, the provisions of this Act
10-11 concerning contested cases apply.
10-12 (c) No revocation, suspension, involuntary modification,
10-13 annulment, <or> withdrawal, or disciplinary action relating to <of>
10-14 any license is effective unless, prior to the institution of agency
10-15 proceedings:
10-16 (1) <,> the agency has served <gave> notice on <by
10-17 personal service or by registered or certified mail to> the
10-18 licensee of the facts or conduct alleged to warrant the intended
10-19 action by personal service or by certified mail, return receipt
10-20 requested with delivery restricted to the licensee, or by other
10-21 means that will be reasonably effective to give the licensee such
10-22 notice;<, and>
10-23 (2) proof of service of notice under this section is
10-24 on file with the agency; and
10-25 (3) the licensee was given an opportunity to show
10-26 compliance with all requirements of law for the retention of the
10-27 license either, at the licensee's option, in writing or through
10-28 personal appearance at an informal meeting with one or more
10-29 authorized representatives of the agency.
10-30 (d) An agency serving notice under Subsection (c) of this
10-31 section must inform the licensee of and provide access to all
10-32 factual information that it has and about which it has knowledge
10-33 concerning the allegations in the notice including but not limited
10-34 to all exculpatory information. Failure to provide exculpatory
10-35 information without a showing of good cause will cause the
10-36 automatic dismissal of any formal complaint without prejudice to
10-37 refiling the same charges.
10-38 (e) A licensee shall be allowed at least 20 days after the
10-39 date of service to respond to a notice issued pursuant to
10-40 Subsection (c) of this section.
10-41 (f) Evidence provided in response to a notice issued to the
10-42 licensee pursuant to Subsection (c) of this section of (1)
10-43 furnishing or offering or promising to furnish, or (2) accepting or
10-44 offering or promising to accept, a valuable consideration in
10-45 compromising or attempting to compromise a claim that was disputed
10-46 as to either validity or amount is not admissible to prove any
10-47 matter or invalidity of the matter. Evidence of conduct or
10-48 statements made in compromise negotiations is likewise not
10-49 admissible. This does not require the exclusion of any evidence
10-50 otherwise discoverable merely because it is presented in the course
10-51 of compromise negotiations nor exclusion when the evidence is
10-52 offered for another purpose, such as proving bias or prejudice or
10-53 interest of a witness or a party, negating a contention of undue
10-54 delay, or proving an effort to obstruct an investigation.
10-55 (g) A "complaint" in a licensing matter is a written
10-56 statement made by some credible person under oath, filed and
10-57 presented on behalf of an agency charging a person with having
10-58 committed an act or acts that if proven could affect the legal
10-59 rights or privileges of a party.
10-60 (h) A complaint must be in writing and shall allege with
10-61 reasonable certainty the specific act or acts relied on by the
10-62 agency to constitute a violation of a specific statute or rule.
10-63 The complaint shall be specific enough to enable a person of common
10-64 understanding to know what is meant by such complaint and with a
10-65 degree of certainty that will give the person who is the subject of
10-66 such complaint notice of the particular act or acts alleged to be a
10-67 violation of such statute or rule.
10-68 (i) In a contested case hearing on a complaint, it shall be
10-69 the primary duty of the agency not to find against a licensee but
10-70 to see that justice is done. An agency shall not suppress facts or
11-1 secret witnesses capable of establishing the truth of a fact or the
11-2 innocence of the licensee.
11-3 (j) In a licensing matter, the person who is the subject of
11-4 a complaint shall be duly served with a copy of the complaint and
11-5 shall be afforded an opportunity for hearing after reasonable
11-6 notice, served by the agency in a manner consistent with the
11-7 requirements for the service of citation under the Texas Rules of
11-8 Civil Procedure, of not less than 45 days, except in cases wherein
11-9 it is alleged, based on a reasonable investigation, that an
11-10 imminent peril to the public health, safety, and welfare exists.
11-11 (k) In this section:
11-12 (1) "Fees and other expenses" means:
11-13 (A) the reasonable expenses of witnesses
11-14 incurred in preparing to testify or in attending or testifying;
11-15 (B) a reasonable fee for the professional
11-16 services of an expert witness; and
11-17 (C) the reasonable costs of a study, analysis,
11-18 engineering report, test, or other project the administrative law
11-19 judge finds to be necessary for the preparation of the party's
11-20 case.
11-21 (2) "Party" means an individual, partnership,
11-22 corporation, association, or public or private organization other
11-23 than a state agency.
11-24 (3) "State agency" means a board, commission,
11-25 department, office, or other agency that:
11-26 (A) is in the executive branch of state
11-27 government;
11-28 (B) was created by the constitution or a statute
11-29 of this state; and
11-30 (C) has statewide jurisdiction.
11-31 (l)(1) A party to a contested case under this Act brought by
11-32 or against a state agency in which the agency asserts a cause of
11-33 action against the party, either originally or as a counterclaim or
11-34 cross-claim, is entitled to recover, in addition to all other costs
11-35 allowed by law or rule, fees, expenses, and reasonable attorney
11-36 fees incurred by the party in defending the agency's action if:
11-37 (A) the administrative law judge or agency where
11-38 applicable finds that the action is frivolous, unreasonable, or
11-39 without foundation; and
11-40 (B) the action is dismissed or a decision is
11-41 awarded favorably to the party.
11-42 (2) To recover under this Act, the party must file a
11-43 written motion alleging that the agency's claim is frivolous,
11-44 unreasonable, or without foundation. The motion may be filed at
11-45 any time after the filing of the complaint in which the agency's
11-46 cause of action is alleged.
11-47 (3) The motion must set forth the facts that justify
11-48 the party's claim.
11-49 (4) The motion must state that if the action is
11-50 dismissed or a decision is in favor of the party, the party intends
11-51 to submit a motion to an appropriate administrative law judge or
11-52 agency to recover fees, expenses, and reasonable attorney fees.
11-53 (m) The agency shall pay the fees and expenses from funds
11-54 appropriated for operation of the agency, funds appropriated for
11-55 the payment of fees and expenses, or other funds available for that
11-56 purpose.
11-57 SECTION 6. Subsections (b) and (d), Section 19,
11-58 Administrative Procedure and Texas Register Act (Article 6252-13a,
11-59 Vernon's Texas Civil Statutes), are amended to read as follows:
11-60 (b) Proceedings for review are instituted by filing a
11-61 petition within 30 days after the decision complained of is final
11-62 and appealable. Unless otherwise provided by statute:
11-63 (1) the petition is filed in a District Court of
11-64 Travis County, Texas;
11-65 (2) the agency shall be served with citation and a
11-66 copy of the petition. The party filing the petition shall send a
11-67 copy of the petition by certified mail to the attorneys of record
11-68 for all parties before the agency. If a party is not represented
11-69 by an attorney the petition shall be sent by certified mail to the
11-70 party or the party's designated representative of record. The
12-1 party filing the petition shall file a certificate of mailing with
12-2 the district clerk stating the name and addresses of those persons
12-3 to whom the petition was mailed <a copy of the petition must be
12-4 served on the agency and all parties of record in the proceedings
12-5 before the agency>; and
12-6 (3) the filing of the petition vacates an agency
12-7 decision for which trial de novo is the manner of review authorized
12-8 by law, but does not affect the enforcement of an agency decision
12-9 for which another manner of review is authorized.
12-10 (d) If the manner of review authorized by law for the
12-11 decision complained of is other than by trial de novo:
12-12 (1) after service of the petition on the agency, and
12-13 within the time permitted for filing an answer (or such additional
12-14 time as may be allowed by the court), the agency shall transmit to
12-15 the reviewing court the original or a certified copy of the entire
12-16 record of the proceeding under review and such agency record shall
12-17 be filed with the clerk of the court. Those portions of the record
12-18 sealed by the agency shall not be considered court records within
12-19 the meaning of the Texas Rules of Civil Procedure as amended. By
12-20 stipulation of all parties to the review proceedings, the record
12-21 may be shortened. A party unreasonably refusing to stipulate to
12-22 limit the record may be taxed by the court for the additional
12-23 costs, unless the party is subject to a rule adopted under
12-24 Subsection (f) of this section requiring payment of all costs of
12-25 record preparation. The court may require or permit subsequent
12-26 corrections or additions to the record;
12-27 (2) any party may apply to the court for leave to
12-28 present additional evidence and the court, if it is satisfied that
12-29 the additional evidence is material and that there were good
12-30 reasons for the failure to present it in the proceeding before the
12-31 agency, may order that the additional evidence be taken before the
12-32 agency on conditions determined by the court. The agency may
12-33 modify its findings and decision by reason of the additional
12-34 evidence and shall file such evidence and any modifications, new
12-35 findings, or decisions with the reviewing court;
12-36 (3) the party seeking judicial review shall offer, and
12-37 the reviewing court shall admit, the agency record into evidence as
12-38 an exhibit. The review is conducted by the court sitting without a
12-39 jury and is confined to the agency record, except that the court
12-40 may receive evidence of procedural irregularities alleged to have
12-41 occurred before the agency but which are not reflected in the
12-42 record.
12-43 SECTION 7. All other laws specific or general or parts of
12-44 law in conflict with this Act are hereby expressly repealed.
12-45 SECTION 8. This Act takes effect September 1, 1993.
12-46 SECTION 9. The importance of this legislation and the
12-47 crowded condition of the calendars in both houses create an
12-48 emergency and an imperative public necessity that the
12-49 constitutional rule requiring bills to be read on three several
12-50 days in each house be suspended, and this rule is hereby suspended.
12-51 * * * * *
12-52 Austin,
12-53 Texas
12-54 May 7, 1993
12-55 Hon. Bob Bullock
12-56 President of the Senate
12-57 Sir:
12-58 We, your Committee on State Affairs to which was referred S.B. No.
12-59 1298, have had the same under consideration, and I am instructed to
12-60 report it back to the Senate with the recommendation that it do not
12-61 pass, but that the Committee Substitute adopted in lieu thereof do
12-62 pass and be printed.
12-63 Harris of
12-64 Dallas, Chairman
12-65 * * * * *
12-66 WITNESSES
12-67 FOR AGAINST ON
12-68 ___________________________________________________________________
12-69 Name: Penny Puryear Burt x
12-70 Representing: Board of Nurse Examiners
13-1 City: Austin
13-2 -------------------------------------------------------------------
13-3 Name: Ace Pickens x
13-4 Representing: Self
13-5 City: Austin
13-6 -------------------------------------------------------------------
13-7 Name: Mary E. Kelly x
13-8 Representing: Henry Lowerre & Taylor
13-9 City: Austin
13-10 -------------------------------------------------------------------
13-11 Name: Allen Halbrook x
13-12 Representing: Self
13-13 City: Austin
13-14 -------------------------------------------------------------------