BILL ANALYSIS
C.S.H.B. 812
By: Duncan
May 2, 1995
Committee Report (Substituted)
BACKGROUND
The Administrative Procedure Act (APA) is the statute that sets
forth the minimum standards for uniform practice and procedure for
state agencies. This statute is currently codified as Chapter 2001
of Title 10 of the Government Code.
Experience under this Act has developed the need for modification
and updating as has been pointed out by court opinions, legal
writers and those who deal with such statutes on a daily basis.
PURPOSE
HB 812 would enact improvements in the APA to clarify certain rule
making procedures as well as standards for judicial review of
agency rules, and will facilitate the administrative adjudication
of disputed matters.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency, or institution.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 2001.024 relating to requirements for
initial publication of a proposed rule by an agency and
insures the agency informs interested persons of the
purpose of and authority for the rule. Requirements
that notice of the proposed rule contain a fiscal note
and public cost/benefit analysis are eliminated.
Instead, a regulatory analysis which may contain a
fiscal note, public cost/benefit analysis, and other
information must be provided by the agency if requested
by at least 25 people, a governmental subdivision or
agency or an association having at least 25 members.
SECTION 2. Amends Section 2001.033 of the APA to insure that agency
orders adopting rules set out full explanations of the
reasons and factual bases for the rule. These
amendments are also intended to bring the APA in line
with the Austin Court of Appeals decision in Railroad
Commission of Texas v. Arco Oil and Gas Company, et al.,
876 S.W.2d 473 (Tex. App.--Austin 1994, writ req'd
8/3/94). The language of this amendment is based on §
3-110 of the Uniform Law Commissions Model
Administrative Procedure Act (1981) to insure careful
agency consideration of proposed rules and comments of
the public.
SECTION 3. Amends Section 2001.035 to clarify the standards for
invalidation of rules upon judicial review. The Courts
have held that the APA does not set out standards for
judicial review of agency rules. The proposed standards
are based on reported court decisions.
SECTION 4. Amends Section 2001.091 relating to discovery. The
amendments would provide that all parties appearing
before agencies in contested case proceedings are
entitled to utilize the discovery forms authorized by
the Texas Rules of Civil Procedure. Unless provided
otherwise by order of the presiding officer or by agency
rule, the procedures, deadlines and other discovery
requirements of the Texas Rules of Civil Procedure will
also apply. In addition, sanctions for abuse of
discovery or failure to obey an agency order relating
to discovery are provided.
SECTION 5. Amends Section 2001.103 relating to the issuance of
subpoenas and to mileage and per diem of witnesses and
deponents. The amendments authorize an agency to compel
the attendance of witnesses and the production of
documents at hearings, allow for the payment of
reasonable witness fees for compelled attendance at
hearings and depositions, and provide for enforcement
of agency-issued subpoenas.
SECTION 6. Amends Section 2001.141 relating to orders entered in
contested case proceedings. Under this section, the
ability of agency to state a final decision in the
record has been deleted. This will address the problems
presented in El Paso Electric Co. v. Public Utility
Commission of Texas, 715 S.W.2d 734 (Tex. App. -- Austin
1989, writ ref'd n.r.e.).
SECTION 7. Amends Section 2001.142 to clarify issues that resulted
after the decisions in Commercial Life Insurance Co. v.
Texas State Board of Insurance, 774 S.W.2d 650 (Tex.
1989), and English v. Central Education Agency, 866
S.W.2d 73 (Tex. App. -- Austin 1993, no writ). The
amendment clearly establishes how notice is to be given
of an agency decision and who is to receive it. The
proposed amendments make it clear that notice is to be
given by first class mail or certified mail, and that
the party, the parties' attorney of record or designated
representative, will be given notice to their accurate
mailing address. The agency would be required to
certify the date of mailing and the names and addresses
of those to whom the decision or order was mailed.
SECTION 8. Amends Section 2001.146 relating to motions for
rehearing to conform Section 2001.146 to Section
2001.142, which was amended in the preceding section of
the bill. This will clarify and give certainty to the
times for filing motions for rehearing, replies thereto,
and for agency action.
SECTION 9. Amends Section 2001.175 relating to procedures for
appellate review of agency decisions. It provides that
portions of an administrative record sealed by the
agency shall not be considered "court records" for
purposes of the Texas Rules of Civil Procedure. Thus,
if an administrative agency has ordered that records be
sealed, such records are not presumed to be public and
open records upon appeal of the final agency order.
SECTION 10. Amends to Section 2001.176 to require a party
seeking judicial review to have the agency served
with citation and to mail copies of the petition by
certified mail to all attorneys of record in the
proceeding before the agency. This insures proper
notice to all parties and eliminates the
unnecessary expense associated with the prior
requirement to have citation served on all parties
appearing before the agency.
SECTION 11. Repeals Sections 2001.030, 2001.089, 2001,092
through 2001.094, 2001.096 through 2001.102, and
2001.143.
Section 2001.030 is repealed to eliminate the
duplication that came into the statute when APA Section
2001.033 was enacted. The duplication was identified
in Methodist Hospital of Dallas v. Texas Industrial
Accident Board, 798 S.W.2d 651 (Tex. App. -- Austin
1990, writ dism'd).
Section 2001.089 is repealed. Its provisions are added
to the section 2001.103 (See Section 5 of the bill)
Certain outdated sections (2001.092 through 2001.94 and
2001.96 through 2001.102) relating to subpoenas,
commissions to take depositions and other procedural
requirements are repealed.
Section 2001.143 relating to the time for rendering an
agency decision is repealed as unnecessary. The courts
have found the time limits imposed by this section to
be directory only.
SECTION 12. Emergency Clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
As substituted, H.B. 812 would:
require notice of proposed rules to state the type of "probable"
economic cost and "probable" costs for enforcement of the rule, as
well as a "summary of alternative methods" for achieving the
purpose of the proposed rule. (Section 1); eliminate the outdated
reference to rules adopted before January 1, 1976, and provide that
a rules is not valid if procedures followed by the agency are not
in substantial compliance with the APA and any other applicable
statutory provision or an agency rule regarding procedure (Section
3) and; put back existing language in Section 2001.103, Government
Code, regarding payment of witness fees, that was inadvertently
left out of the original bill (Section 5).
SUMMARY OF COMMITTEE ACTION
Pursuant to notice posted on April 6, 1995, the House Committee on
State Affairs convened in a public hearing on April 11, 1995 to
consider HB 812. The Chair laid out HB 812 and recognized Rep.
Duncan to explain the bill. A complete committee substitute was
considered which was not adopted. The following person testified
for the bill: Catherine Fryer representing herself. The Chair
recognized Rep. Duncan to close. The Chair left HB 812 pending.
HB 812 was considered by the committee in a formal meeting on April
27, 1995. The Chair laid out HB 812. The committee considered a
complete committee substitute for the bill. The substitute was
adopted without objection. The bill was reported favorably as
substituted with the recommendation that it do pass and be printed
and be sent to the Committee on Local and Consent Calendars, by a
record vote of 14 ayes, 0 nay, 1 pnv, and 0 absent.