By Duncan H.B. No. 812
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to procedures before administrative agencies.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 2001.024, Texas Government Code, is
1-5 amended to read as follows:
1-6 Sec. 2001.024. Content of Notice. (a) The notice of a
1-7 proposed rule must include:
1-8 (1) an <a brief> explanation of the purpose of the
1-9 proposed rule;
1-10 (2) the text of the proposed rule, except any portion
1-11 omitted under Section 2002.014, prepared in a manner to indicate
1-12 any words to be added or deleted from the current text;
1-13 (3) a statement of the statutory or other authority
1-14 under which the rule is proposed to be adopted, including:
1-15 (A) a concise explanation of how the particular
1-16 statutory or other provisions under which the rule is proposed
1-17 authorize or require the rule;
1-18 (B) the section or article of the code affected;
1-19 and
1-20 (C) a certification that the proposed rule has
1-21 been reviewed by legal counsel and found to be within the state
1-22 agency's authority to adopt;
1-23 (4) <a fiscal note showing the name and title of the
2-1 officer or employee responsible for preparing or approving the note
2-2 and stating for each year of the first five years that the rule
2-3 will be in effect:>
2-4 <(A) the additional estimated cost to the state
2-5 and to local governments expected as a result of enforcing or
2-6 administering the rule;>
2-7 <(B) the estimated reductions in costs to the
2-8 state and to local governments as a result of enforcing or
2-9 administering the rule;>
2-10 <(C) the estimated loss or increase in revenue to
2-11 the state or to local governments as a result of enforcing or
2-12 administering the rule; and>
2-13 <(D) if applicable, that enforcing or
2-14 administering the rule does not have foreseeable implications
2-15 relating to cost or revenues of the state or local governments;>
2-16 <(5) a note about public benefits and costs showing the
2-17 name and title of the officer or employee responsible for preparing
2-18 or approving the note and stating for each year of the first five
2-19 years that the rule will be in effect:>
2-20 <(A) the public benefits expected as a result of
2-21 adoption of the proposed rule; and>
2-22 <(B) the probable economic cost to persons
2-23 required to comply with the rule;>
2-24 <(6)> the local employment impact statement prepared
2-25 under Section 2001.022, if required;
3-1 (5) <(7)> a request for comments on the proposed rule
3-2 from any interested person; <and>
3-3 (6) <(8)> a statement that a regulatory analysis will
3-4 be prepared if requested as provided in Subsection (b)(1) of this
3-5 section and that any interested person may obtain a copy of the
3-6 regulatory analysis by contacting the agency; and
3-7 (7) any other statement required by law.
3-8 (b) (1) An agency shall issue a regulatory analysis of a
3-9 proposed rule if, within 10 days after the published notice of
3-10 proposed rule adoption, the agency receives a written request for
3-11 the analysis from at least 25 persons, a governmental subdivision
3-12 or agency, or an association having at least 25 members.
3-13 (2) The written request may require the agency to
3-14 provide any or all of the following in its regulatory analysis:
3-15 (A) a description of the classes of persons who
3-16 probably will be affected by the proposed rule, including classes
3-17 that will bear the costs of the proposed rule and classes that will
3-18 benefit from the proposed rule;
3-19 (B) a description of the type of economic cost to
3-20 persons required to comply with the rule;
3-21 (C) the types of costs to the agency and to any other
3-22 agency of the implementation and enforcement of the proposed rule
3-23 and any anticipated effect on state revenues;
3-24 (D) a description of any alternative methods for
3-25 achieving the purpose of the proposed rule that were considered by
4-1 the agency and the reasons why they were rejected in favor of the
4-2 proposed rule.
4-3 (3) If a regulatory analysis is requested, the agency
4-4 shall send it to each person requesting it and make it available to
4-5 the public at least 10 days before the earliest of:
4-6 (A) the end of any period for written submissions or
4-7 for requesting a public hearing on the proposed rule;
4-8 (B) any public hearing may be held on the proposed
4-9 rule; or
4-10 (C) the proposed rule may be adopted.
4-11 SECTION 2. Section 2001.033, Texas Government Code, is
4-12 amended to read as follows:
4-13 Sec. 2001.033. State Agency Order Adopting Rule. A state
4-14 agency order finally adopting a rule must include:
4-15 (1) a reasoned justification of the rule, including:
4-16 (A) a statement of the reasons for adopting the
4-17 rule and the rule's factual basis;
4-18 (B) a summary of comments received from parties
4-19 interested in the rule that shows the names of interested groups or
4-20 associations offering comment on the rule and whether they were for
4-21 or against its adoption; and
4-22 <(B) a restatement of the rule's factual basis;
4-23 and>
4-24 (C) the reasons why the agency disagrees with
4-25 party submissions and proposals;
5-1 (2) a concise restatement of the particular statutory
5-2 provisions under which the rule is adopted and of how the agency
5-3 interprets the provisions as authorizing or requiring the rule; and
5-4 (3) a certification that the rule, as adopted, has
5-5 been reviewed by legal counsel and found to be a valid exercise of
5-6 the agency's legal authority.
5-7 SECTION 3. Section 2001.035, Texas Government Code, is
5-8 amended to read as follows:
5-9 Sec. 2001.035. VALIDITY REQUIREMENTS <SUBSTANTIAL COMPLIANCE
5-10 REQUIREMENT>; TIME LIMIT ON PROCEDURAL CHALLENGE. (a) A rule
5-11 adopted after January 1, 1976, is not valid if it, or the agency
5-12 action in proposing and adopting the rule:
5-13 (1) violates a constitutional or state statutory
5-14 provision;
5-15 (2) exceeds the statutory authority of the agency;
5-16 (3) is arbitrary or capricious or an abuse of
5-17 discretion; or
5-18 (4) is not in substantial compliance with Sections
5-19 2001.023 through 2001.034. <unless a state agency adopts it in
5-20 substantial compliance with Sections 2001.023 through 2001.034>.
5-21 (b) A person must initiate a proceeding to contest a rule on
5-22 the ground of noncompliance with the procedural requirements of
5-23 Sections 2001.023 through 2001.034 not later than the second
5-24 anniversary of the effective date of the rule.
5-25 SECTION 4. Section 2001.091, Texas Government Code, is
6-1 amended to read as follows:
6-2 Sec. 2001.091. DISCOVERY: SANCTIONS. (a) Parties to a
6-3 contested case are entitled at a minimum to use all forms of
6-4 discovery provided in the Texas Rules of Civil Procedure, as those
6-5 rules now exist or as subsequently amended. Agencies shall have
6-6 the authority to and shall adopt rules implementing use of these
6-7 forms of discovery. The scope of discovery shall be subject to the
6-8 limitations set out in the Texas Rules of Civil Procedure. Unless
6-9 provided otherwise by order of the presiding officer served on all
6-10 parties or by agency rule, the procedures, deadlines, and other
6-11 requirements set out in the Texas Rules of Civil Procedure for use
6-12 of those forms of discovery shall apply.
6-13 (b) After notice and opportunity for a hearing, the
6-14 presiding officer or an agency, consistent with agency rule, may
6-15 impose any of the following sanctions for abuse of discovery:
6-16 (1) disallow further discovery, in whole or in part,
6-17 by the noncomplying party;
6-18 (2) limit the noncomplying party's participation in
6-19 the proceeding;
6-20 (3) direct that certain facts be deemed admitted;
6-21 (4) prohibit submission of certain evidence or
6-22 testimony;
6-23 (5) strike pleadings, in full or in part, of the
6-24 noncomplying party;
6-25 (6) dismiss the action, in full or in part; or
7-1 (7) suspend the processing of the application if the
7-2 applicant is noncomplying.
7-3 <On the motion of a party, on notice to each other party, and
7-4 subject to limitations of the kind provided for discovery under the
7-5 Texas Rules of Civil Procedure, a state agency in which a contested
7-6 case is pending may order a party:
7-7 (1) to produce and to permit the party making the
7-8 motion or a person on behalf of that party to inspect and to copy
7-9 or photograph a designated document, paper, book, account, letter,
7-10 photograph, or tangible thing in the party's possession, custody,
7-11 or control that:
7-12 (A) is not privileged; and
7-13 (B) constitutes or contains, or is reasonably
7-14 calculated to lead to the discovery of, evidence that is material
7-15 to a matter involved in the contested case; and
7-16 (2) to permit entry to designated land or other
7-17 property in the party's possession or control to inspect, measure,
7-18 survey, or photograph the property or a designated object or
7-19 operation on the property that may be material to a matter involved
7-20 in the contested case.
7-21 (b) An order under this section:
7-22 (1) must specify the time, place, and manner of making
7-23 the inspection, measurement, or survey or of making copies or
7-24 photographs; and
7-25 (2) may prescribe other terms and conditions that are
8-1 just.>
8-2 SECTION 5. Section 2001.103, Texas Government Code, is
8-3 amended to read as follows:
8-4 Sec. 2001.103. ISSUANCE OF SUBPOENA; MILEAGE AND PER DIEM
8-5 OF WITNESS OR DEPONENT. (a) On its own motion or on the written
8-6 request of any party to a contested case pending before it, on a
8-7 showing of good cause, and on deposit of sums that will reasonably
8-8 insure payment of the amounts estimated to accrue under subsection
8-9 (b) of this section, an agency shall issue a subpoena addressed to
8-10 the sheriff or any constable of the State of Texas or other person
8-11 authorized to serve and execute subpoenas as provided in the Texas
8-12 Rules of Civil Procedure to require the attendance at a hearing of
8-13 witnesses and the production of books, records, papers, or other
8-14 objects at the hearing as may be necessary and proper for the
8-15 purposes of the proceedings.
8-16 (b) A witness or deponent who is not a party and who is
8-17 subpoenaed or otherwise compelled to attend any hearing or
8-18 deposition or to produce books, records, papers, or other objects
8-19 that may be necessary and proper for the purposes of the proceeding
8-20 under the authority of this section is entitled to receive:
8-21 (1) mileage expense in an amount equal to that
8-22 authorized for state employees pursuant to the General
8-23 Appropriations Act, or a greater amount as prescribed by agency
8-24 rule, for going to, and returning from the place of the hearing or
8-25 deposition, if the place is more than 25 miles from the person's
9-1 place of residence; and
9-2 (2) per diem expenses in an amount equal to that
9-3 authorized for state employees pursuant to the General
9-4 Appropriations Act, or a greater amount as prescribed by agency
9-5 rule, for each day or part of a day the person is necessarily
9-6 present as a witness or deponent.
9-7 (c) Mileage and fees to which a witness or deponent is
9-8 entitled under subsection (b) of this section shall be paid by the
9-9 party or agency at whose request the witness appears or the
9-10 deposition is taken, on presentation of proper vouchers sworn by
9-11 the witness and approved by the agency.
9-12 (d) In the case of failure to comply with a subpoena issued
9-13 under the authority of this Act, the agency issuing the subpoena,
9-14 acting through the attorney general, or the party requesting the
9-15 subpoena, may bring suit to enforce the subpoena in a district
9-16 court, either in Travis County, or in the county in which a hearing
9-17 conducted by the agency issuing the subpoena may be held. The
9-18 court, if it determines that good cause exists for the issuance of
9-19 the subpoena, shall order compliance with the requirements of the
9-20 subpoena. Failure to obey the order of the court may be punished
9-21 by the court as contempt.
9-22 <A witness or deponent in a contested case who is not a party and
9-23 who is subpoenaed or otherwise compelled to attend a hearing or
9-24 proceeding to give a deposition or to produce books, records,
9-25 papers, or other objects that may be necessary and proper for the
10-1 purposes of a proceeding under this chapter is entitled to receive:>
10-2 <(1) 10 cents for each mile, or a greater amount
10-3 prescribed by state agency rule, for going to and returning from
10-4 the place of the hearing or deposition if the place is more than 25
10-5 miles from the person's place of residence; and>
10-6 <(2) $10, or a greater amount prescribed by state
10-7 agency rule, for each day or part of a day that the person is
10-8 necessarily present.>
10-9 <(b) On the presentation of proper vouchers sworn by the
10-10 witness and approved by the state agency, the party or agency at
10-11 whose request the witness appears or the deposition is taken shall
10-12 pay the amounts to which the witness is entitled under this
10-13 section.>
10-14 <(c) On its own motion or on the written request of any party
10-15 to a contested case pending before it, on a showing of good cause,
10-16 and on deposit of sums that will reasonably insure payment of the
10-17 amounts estimated to accrue under Subsections (l) and (m) of this
10-18 section, an agency shall issue a subpoena addressed to the sheriff
10-19 or any constable to require the attendance of witnesses and the
10-20 production of books, records, papers, or other objects as may be
10-21 necessary and proper for the purposes of the proceedings.>
10-22 <(d) On its own motion or on the written request of any party
10-23 to a contested case pending before it and on deposit of sums that
10-24 will reasonably insure payment of the amounts estimated to accrue
10-25 under Subsections (l) and (m) of this section, an agency shall
11-1 issue a commission, addressed to the several officers authorized by
11-2 statute to take depositions, to require that the deposition of a
11-3 witness be taken, which commission shall authorize the issuance of
11-4 any subpoenas necessary to require that the witness appear and
11-5 produce, at the time the deposition is taken, books, records,
11-6 papers, or other objects as may be necessary and proper for the
11-7 purposes of the proceeding. The deposition of a member of an
11-8 agency board may not be taken after a date has been set for
11-9 hearing.">
11-10 <(l) A witness or deponent who is not a party and who is
11-11 subpoenaed or otherwise compelled to attend any hearing or
11-12 proceeding to give a deposition or to produce books, records,
11-13 papers, or other objects that may be necessary and proper for the
11-14 purposes of the proceeding under the authority of this section is
11-15 entitled to receive:>
11-16 <(1) Mileage of 10 cents a mile, or a greater amount as
11-17 prescribed by agency rule, for going to, and returning from the
11-18 place of the hearing or the place where the deposition is taken, if
11-19 the place is more than 25 miles from the person's place of
11-20 residence and the person uses the person's personally owned or
11-21 leased motor vehicle for the travel.>
11-22 <(2) reimbursement of the transportation expenses of
11-23 the witness or deponent while going to and return from the place of
11-24 the hearing or the place where the deposition is taken, if the
11-25 place is more than 25 miles from the person's place of residence
12-1 and the person does not use the person's personally owned or leased
12-2 motor vehicle for the travel;>
12-3 <(3) reimbursement of the meal and lodging expenses of
12-4 the witness or deponent while going to and returning from the place
12-5 of the hearing or the place where the deposition is taken, if the
12-6 place is more than 25 miles from the person's place of residence;
12-7 and>
12-8 <(4) a fee of $10 a day, or a greater amount as
12-9 prescribed by agency rule, for each day or part of a day the person
12-10 is necessarily present as a witness or deponent.>
12-11 <(m)(1) The mileage, transportation, meal, and lodging
12-12 expenses and the fees that must be reimbursed or paid under this
12-13 section shall be paid or reimbursed by the party or agency at whose
12-14 request the witness or deponent appears or the deposition is taken.
12-15 An agency required to make a payment or reimbursement must present
12-16 to the comptroller vouchers sworn by the witness or deponent and
12-17 approved by the agency in accordance with Article 6252-31, Revised
12-18 Statutes, as added by Chapter 641, Acts of the 72nd Legislature,
12-19 Regular Session, 1991.>
12-20 <(2) An agency may directly pay a commercial
12-21 transportation company for the transportation expenses and a
12-22 commercial lodging establishment for the lodging expenses of a
12-23 witness or deponent if this section otherwise requires the agency
12-24 to reimburse the witness or deponent for those expenses.>
12-25 <(3) An agency may not pay a commercial transportation
13-1 company or commercial lodging establishment or reimburse a witness
13-2 or deponent for transportation, meal, or lodging expenses under
13-3 this section at a rate that exceeds the maximum rates provided by
13-4 law for state employees. An agency may not adopt rules that
13-5 provide for payment or reimbursement rates that exceed those
13-6 maximum rates.>
13-7 <(4) In this subsection:>
13-8 <(A) "Commercial lodging establishment" means a
13-9 motel, hotel, inn, apartment, or similar entity that offers lodging
13-10 to the public in exchange for compensation.>
13-11 <(B) "Commercial transportation company" means an
13-12 entity that offers transportation of people or goods to the public
13-13 in exchange for compensation.>
13-14 SECTION 6. Section 2001.141, Texas Government Code, is
13-15 amended to read as follows:
13-16 Sec. 2001.141. Form of Decision; Findings of Fact and
13-17 Conclusions of Law. (a) A decision or order that may become final
13-18 under Section 2001.144 that is adverse to a party in a contested
13-19 case must be in writing <or stated in the record>.
13-20 (b) A decision that may become final under Section 2001.144
13-21 must include findings of fact and conclusions of law, separately
13-22 stated.
13-23 (c) Findings of fact may be based only on the evidence and
13-24 on matters that are officially noticed.
13-25 (d) Findings of fact, if set forth in statutory language,
14-1 must be accompanied by a concise and explicit statement of the
14-2 underlying facts supporting the findings.
14-3 (e) If a party submits under a state agency rule proposed
14-4 findings of fact, the decision shall include a ruling on each
14-5 proposed finding.
14-6 SECTION 7. Section 2001.142, Texas Government Code, is
14-7 amended to read as follows:
14-8 Sec. 2001.142. Notification of Decisions and Orders. (a) A
14-9 party in a contested case shall be notified <either personally or>
14-10 by first class or certified mail of any decision or order. All
14-11 parties or their attorneys or other designated representatives of
14-12 record in agency proceedings shall furnish the agency with an
14-13 accurate mailing address throughout the pendency of the contested
14-14 case.
14-15 (b) On issuance in a contested case of a decision that may
14-16 become final under Section 2001.144 or an order ruling on a motion
14-17 for rehearing, a state agency shall send a copy of the decision or
14-18 order by first class or certified mail to the attorneys of record
14-19 or to the parties or their other designated representative if not
14-20 represented by an attorney of record, and shall keep an appropriate
14-21 record of the mailing and shall attach to the decision or order a
14-22 certification of the date of mailing and the names and addresses of
14-23 those who were mailed such decision or order. The copy of the
14-24 decision or order shall be mailed to the address submitted by the
14-25 party pursuant to subsection (a) of this section. <If a party is
15-1 not represented by an attorney of record, the state agency shall
15-2 send a copy of the decision or order by first class mail to the
15-3 party and shall keep an appropriate record of the mailing.>
15-4 <(c) A party or attorney of record notified by mail under
15-5 Subsection (b) is presumed to have been notified on the date on
15-6 which the notice is mailed.>
15-7 SECTION 8. Section 2001.146, Texas Government Code, is
15-8 amended to read as follows:
15-9 Sec. 2001.146. Motions for Rehearing: Procedures. (a) A
15-10 motion for rehearing in a contested case must be filed by a party
15-11 not later than the 20th day after the date on which the decision or
15-12 order is mailed <party or the party's attorney of record is
15-13 notified> as required by Section 2001.142 <of a decision or order
15-14 that may become final under Section 2001.144>.
15-15 (b) A reply to a motion for rehearing must be filed with the
15-16 state agency not later than the 30th day after the date on which
15-17 the decision or order is mailed <party or the party's attorney of
15-18 record is notified> as required by Section 2001.142 <of the
15-19 decision or order that may become final under Section 2001.144>.
15-20 (c) A state agency shall act on a motion for rehearing not
15-21 later than the 45th day after the date on which the decision or
15-22 order is mailed <party or the party's attorney of record is
15-23 notified> as required by Section 2001.142 <of the decision or order
15-24 that may become final under Section 2001.144> or the motion for
15-25 rehearing is overruled by operation of law.
16-1 (d) If a state agency board includes a member who does not
16-2 receive a salary for work as a board member and who resides outside
16-3 Travis County, the board may rule on a motion for rehearing at a
16-4 meeting or by:
16-5 (1) mail;
16-6 (2) telephone;
16-7 (3) telegraph; <or>
16-8 (4) telecopy; or
16-9 (5) another suitable means of communication.
16-10 (e) A state agency may by written order extend the time for
16-11 filing a motion or reply or taking agency action under this
16-12 section, except that an extension may not extend the period for
16-13 agency action beyond the 90th day after the date on which the
16-14 decision or order is mailed <party or the party's attorney of
16-15 record is notified> as required by Section 2001.142 <of the
16-16 decision or order that may become final under Section 2001.144>.
16-17 (f) In the event of an extension, a motion for rehearing is
16-18 overruled by operation of law on the date fixed by the order or, in
16-19 the absence of a fixed date, 90 days after the date on which the
16-20 decision or order is mailed <party or the party's attorney of
16-21 record is notified> as required by Section 2001.142 <of the
16-22 decision or order that may become final under Section 2001.144>.
16-23 SECTION 9. Section 2001.175, Texas Government Code, is
16-24 amended to read as follows:
16-25 Sec. 2001.175. Procedures for Review Under Substantial
17-1 Evidence Rule or Undefined Scope of Review. (a) The procedures of
17-2 this section apply if the manner of review authorized by law for
17-3 the decision in a contested case that is the subject of complaint
17-4 is other than by trial de novo.
17-5 (b) After service of the petition on a state agency and
17-6 within the time permitted for filing an answer or within additional
17-7 time allowed by the court, the agency shall send to the reviewing
17-8 court the original or a certified copy of the entire record of the
17-9 proceeding under review. The record shall be filed with the clerk
17-10 of the court. Those portions of the record sealed by the agency
17-11 shall be treated as court records that have been sealed pursuant to
17-12 the Texas Rules of Civil Procedure as amended. The record may be
17-13 shortened by stipulation of all parties to the review proceedings.
17-14 The court may assess additional costs against a party who
17-15 unreasonably refuses to stipulate to limit the record, unless the
17-16 party is subject to a rule adopted under Section 2001.177 requiring
17-17 payment of all costs of record preparation. The court may require
17-18 or permit later corrections or additions to the record.
17-19 (c) A party may apply to the court to present additional
17-20 evidence. If the court is satisfied that the additional evidence
17-21 is material and that there were good reasons for the failure to
17-22 present it in the proceeding before the state agency, the court may
17-23 order that the additional evidence be taken before the agency on
17-24 conditions determined by the court. The agency may change its
17-25 findings and decision by reason of the additional evidence and
18-1 shall file the additional evidence and any changes, new findings,
18-2 or decisions with the reviewing court.
18-3 (d) The party seeking judicial review shall offer, and the
18-4 reviewing court shall admit, the state agency record into evidence
18-5 as an exhibit.
18-6 (e) A court shall conduct the review sitting without a jury
18-7 and is confined to the agency record, except that the court may
18-8 receive evidence of procedural irregularities alleged to have
18-9 occurred before the agency that are not reflected in the record.
18-10 SECTION 10. Section 2001.176, Texas Government Code, is
18-11 amended to read as follows:
18-12 Sec. 2001.176. Petition Initiating Judicial Review. (a) A
18-13 person initiates judicial review in a contested case by filing a
18-14 petition not later than the 30th day after the date on which the
18-15 decision that is the subject of complaint is final and appealable.
18-16 (b) Unless otherwise provided by statute:
18-17 (1) the petition must be filed in a Travis County
18-18 district court;
18-19 (2) the agency shall be served with citation and a
18-20 copy of the petition. The party filing the petition shall send a
18-21 copy of the petition by certified mail to the attorneys of record
18-22 for all parties before the agency. If a party is not represented
18-23 by an attorney the petition shall be sent by certified mail to the
18-24 party or the party's designated representative of record. The
18-25 party filing the petition shall file a certificate of mailing with
19-1 the district clerk stating the name and addresses of those persons
19-2 to whom the petition was mailed <a copy of the petition must be
19-3 served on the state agency and each party of record in the
19-4 proceedings before the agency>; and
19-5 (3) the filing of the petition vacates a state agency
19-6 decision for which trial de novo is the manner of review authorized
19-7 by law but does not affect the enforcement of an agency decision
19-8 for which another manner of review is authorized.
19-9 SECTION 11. Sections 2001.030, 2001.089, 2001.092 through
19-10 2001.94, 2001.096 through 2001.102, and 2001.143, Texas Government
19-11 Code, are repealed.
19-12 SECTION 12. The importance of this legislation and the
19-13 crowded condition of the calendars in both houses create an
19-14 emergency and an imperative public necessity that the
19-15 constitutional rule requiring bills to be read on three several
19-16 days in each house be suspended, and this rule is hereby suspended.