74(R) SB 12 House Committee Report

BILL ANALYSIS

C.S.S.B. 12
By: Montford (Bosse)
4-18-95
Committee Report (Substituted)

BACKGROUND
Under current law, the Office of Hearing Examiners is under the
exclusive control of the Texas Natural Resource Conservation
Commission and was created to assist the commission in carrying out
its powers and duties under the 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 Texas
Natural Resource Conservation Commission's independent hearings.

PURPOSE
To dissolve the Office of Hearing Examiners in the Texas Natural
Resources Conservation Commission and allows 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 C, Chapter 2003, Government Code, by
adding Sections 2003.047 and 2003.048, which provide as follows:

Section 2003.047. NATURAL RESOURCE CONSERVATION
DIVISION.

(a) Establishes the natural resource conservation
division to perform the contested case hearings for the Texas
Natural Resource Conservation Commission.
(b) Requires the division to conduct hearings related
to contested cases before the commission, other than a hearing
conducted by one or more commissioners, and allows the commission
by rule to delegate to the division the responsibilities to hear
any other matter before the commission if consistent with the
responsibilities of the division.
(c) Provides that only an administrative law judge in
the division may conduct a hearing on behalf of the commission, but
allows the administrative law judge to conduct hearings for other
state agencies as time allows. Allows administrative law judges to
serve on a permanent or temporary basis.
(d) Sets minimum eligibility requirements for
administrative law judges.
(e) Requires the commission to provide to the
administrative law judge a list of issues to be addressed and any
additional issues to be addressed once the office receives
jurisdiction of a proceeding.
(f) Requires the office and the commission to jointly
adopt rules providing for the certification to the commission of an
issue that involves an ultimate finding of compliance with or
satisfaction of a statutory standard.
(g) Allows an administrative law judge hearing a case
on behalf of the commission to impose appropriate sanctions against
a party or its representatives under various circumstances.
(h) Lists potential sanctions that can be imposed under
(g).

Section 2003.048. NATURAL RESOURCE CONSERVATION
COMMISSION HEARINGS FEE. Requires the office to charge
the Texas Natural Resource Conservation Commission a fixed annual
fee rather than an hourly rate for services rendered by the office
to the commission.

SECTION 2. Amends Subchapter H, Chapter 5, Texas Water Code, as
follows:

SUBCHAPTER H. New heading: DELEGATION OF HEARINGS

Sec. 5.311. DELEGATION OF RESPONSIBILITY. (a) Authorizes the
Texas Natural Resource Conservation Commission (commission) to
delegate to an administrative law judge of the State Office
of Administrative Hearings (office), rather than a hearing examiner, responsibility to hear any matter before the commission.
Deletes existing Sections 5.311 and 5.312 relating to the
creation and organization of the office of hearing examiners.
Redesignates existing Section 5.313.

(b) Deletes language requiring a hearing examiner to
prepare for and hold any hearing as directed by the
commission. Makes a conforming change.

Sec. 5.312. TIME LIMIT FOR ISSUANCE OR DENIAL OF PERMITS.
Redesignates existing Section 5.314.

Sec. 5.313. HEARING EXAMINERS REFERENCED IN LAW. Provides
that any reference to a hearing examiner related to a case
pending before the commission means an administrative law judge
of the office.

SECTION 3. Amends Sections 26.021 (a)-(c), Water Code, as follows:

(a) Makes a conforming change.

(b) Authorizes the commission to authorize the chief
administrative law judge, rather than chief hearing
examiner, to delegate to other administrative law judges the authority to hold any hearing called by the chief
administrative law judge.

(c) Authorizes the chief administrative law judge or the
administrative law judge to whom a hearing is delegated,
rather than the chief hearing examiner or person delegated by the chief hearing examiner to hold the hearing, to
administer oaths and receive evidence at any hearing called
under this section.

SECTION 4. Amends Sections 28.029(a)-(c), Water Code to make
conforming changes.

SECTION 5. Amends Sections 31.009(a)-(c), Water Code to make
conforming changes.

SECTION 6. Amends Sections 361.0831(a) and (b), Health and Safety
Code, as follows:

(a) Prohibits a hearing examiner from communicating in
any way with, among others, an employee of the
commission, unless permitted by Section 2001.061, Government Code. Makes conforming and nonsubstantive changes.

(b) Makes a conforming change.

SECTION 7. Amends Section 361.0832, Health and Safety Code, by
amending Subsection (a), and adding Subsection (g), as follows:

(a) Makes a conforming change.

(g) Provides that to the extent of a conflict between
this section and Section 2001.058(e), Government Code,
this section controls.

SECTION 8. Requires the chief administrative law judge to consult,
as soon as practicable, with the chief administrative hearing
examiner of the commission to assist in determining the number of
and requirements for the administrative law judges needed for
commission hearings; and making necessary administrative changes in
the office.

SECTION 9. Provides that on September 1, 1995, all equipment, data
facilities, and other items of the office of hearing examiners of
the commission are transferred to the office.

(b) Requires the chief administrative law judge of the
office to assign to a hearing examiner or administrative
law judge employed by the office of hearing examiners of
the Texas Natural Resource Conservation Commission who is hearing a case pending before the commission as of the
effective date of this Act and who is offered and accepts a
position as an administrative law judge of the State Office
of Administrative Hearings such case to render a proposal for decision.

SECTION 10. Effective date.

SECTION 11. Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE
1) New SECTION 1 is added in the Substitute and the subsequent
sections are renumbered accordingly. New SECTION 1 of the
Substitute adds Sections 2003.047 and 2003.048 to Subchapter C,
Chapter 2003, Government Code.

Section 2003.047. NATURAL RESOURCE CONSERVATION
DIVISION.

2) Under SECTION 1 of the Original, Subchapter H, Chapter 5, Water
Code, new Section 5.314 [page 2 of the Original bill, lines 18-25]
is deleted. The language in the Original required that the State
Office of Administrative Hearings charge the commission a fixed
annual fee rather than an hourly rate for services rendered. This
is accomplished by amending Subchapter C, Chapter 2003, Government
Code, by adding Section 2003.048 in SECTION 1 of the Substitute.

SUMMARY OF COMMITTEE ACTION
S.B.12 was considered by the committee in a public hearing on April
18, 1995.
No testimony was received.
The committee considered a complete 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, by a record vote of
8 ayes, 0 nays, 0 pnv, 1 absent.