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.