74(R) HB 1097 House Committee Report

                          BILL ANALYSIS



H.B. 1097
By: Bosse
3-13-95
Committee Report (Unamended)


BACKGROUND
Under current law, the Office of Hearing Examiners is under the
exclusive control of the Texas Natural Resource Conservation
Commission (TNRCC) and was created to assist the commission in
carrying out its powers and duties under the Texas Water Code. 
Hearing examiners, although housed within the state agency, are
supposed to be independent.  They preside over quasi-legal
inquiries into disputed applications for permits.  Their decisions
are forwarded to the commission, which can accept or reject the
recommendation.  Recently, a hearing examiner reported that her
supervisors at the commission pressured her to change her findings
in a case involving a waste disposal company's request to expand a
landfill.  This reported incident called into question the
integrity of the TNRCC's independent hearings.

PURPOSE
To dissolve the Office of Hearing Examiners in the TNRCC and allow
the Office of Administrative Hearings to assume its functions.

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 Subchapter H, Chapter 5, Water Code, to
allow the TNRCC to delegate to an administrative law judge of the
State Office of Administrative Hearings the responsibility to hear
any matter before the commission.  Requires the administrative law
judge to report to the TNRCC on the hearing.  Provides for the
dissolution of the TNRCC's Office of Hearing Examiners.  Designates
that any reference in law to a hearing examiner in association with
a case before the TNRCC means an administrative law judge of the
State Office of Administrative Hearings.

     Section 2. Amends Sections 26.021 (a) - (c), Water Code, to
allow the TNRCC to authorize the chief administrative law judge of
the State Office of Administrative Hearings to 1) hold hearings on
any subject on which the commission can hold a hearing, except for
those hearings required to be held before the commission only and
2) delegate to administrative law judges the authority to hold any
hearing the chief administrative law judge calls.  Authorizes the
chief administrative law judge or an administrative law judge to
whom the hearing is delegated to administer oaths and receive
evidence.

     Section 3. Amends Sections 28.029 (a) - (c), Water Code, to
allow the TNRCC to authorize the chief administrative law judge to
1) hold hearings on any subject on which the commission may hold a
hearing and 2) to delegate to administrative law judges the
authority to hold any hearing the chief administrative law judge
calls.  Authorizes the chief administrative law judge or an
administrative law judge to whom the hearing is delegated to
administer oaths and receive evidence.

     Section 4. Amends Sections 31.009 (a) - (c), Water Code, to
allow the TNRCC to authorize the chief administrative law judge to
1) hold hearings on any subject on which the commission may hold a
hearing and 2) to delegate to administrative law judges the
authority to hold any hearing the chief administrative law judge
calls.  Authorizes the chief administrative law judge or an
administrative law judge to whom the hearing is delegated to
administer oaths and receive evidence.

     Section 5. Amends Sections 361.0831 (a) and (b), Health and
Safety Code, to forbid a  hearing examiner to engage in ex parte
communications with any employee of the TNRCC, any TNRCC
commissioner, or any party to a hearing conducted by the TNRCC,
unless required for ex parte matters authorized by law or permitted
by Section 2001.061, Government Code.  Forbids said employees,
commissioners, or parties from attempting to inappropriately
influence the findings of fact or the application of law or rules
by a hearing examiner.

     Section 6. Amends Section 361.0832, Health and Safety Code, to
require a hearing examiner to make findings of fact and conclusions
of law and to make a proposal for decision to the TNRCC to be
served on all parties.  New subsection (g) makes this Section
applicable to a decision of the commission to 1) overturn a finding
of fact or a conclusion of law or 2) reject a proposal for
decision.

     Section 7. Requires the chief administrative law judge of the
State Office of Administrative Hearings to employ administrative
law judges with the expertise necessary to conduct hearings on
technical or specialized subject matter that may come before the
TNRCC and to make all administrative changes necessary for the
State Office of Administrative Hearings to assume the functions of
the Office of Hearing Examiners in the TNRCC.  The chief
administrative law judge of the State Office of Administrative
Hearings may consult the chief administrative hearing examiner of
the TNRCC in fulfilling these requirements.

     Section 8. Requires the TNRCC to continue to employ a hearing
examiner who is hearing a case pending before the commission on
January 1, 1996 until the examiner renders a proposal for decision. 
However, if the hearing examiner accepts a position as an
administrative law judge of the State Office of Administrative
Hearings, the TNRCC must transfer any case that the examiner is
hearing to the State Office of Administrative Hearings and the
chief administrative law judge will assign the case to that
individual.

     Section 9. Provides that on January 1, 1996, all office space
and facilities, equipment, data, records, case files and other
possessions from the hearing division of the TNRCC will be
transferred to the State Office of Administrative Hearings. 
Provides for the dissolution of the hearing division of the TNRCC
on this date.  Requires the chief administrative law judge of the
State Office of Administrative Hearings to make such transferred
possessions available to a TNRCC hearing examiner who is hearing a
case pending with the commission on January 1, 1996 and to assist
such hearing examiner in the performance of the examiner's duties
related to the case.

     Section 10.  Provides that, in spite of Section 2001.058,
Government Code, this Act does not affect the authority of the
TNRCC to change a finding of fact or conclusion of law made by the
hearing examiner or administrative law judge or to vacate or modify
an order issued by the hearing examiner or administrative law judge
in any case pending before the TNRCC that was filed before January
1, 1996.

     Section 11. Effective dates.

     Section 12. Emergency clause.



SUMMARY OF COMMITTEE ACTION
H.B.1097 was considered by the committee in a public hearing on
March 13, 1995.
No testimony was received.
The bill was reported favorably, without amendment, and with the
recommendation that it do pass and be printed, by a record vote of
9 ayes, 0 nays, 0 pnv, 0 absent.