By: Montford S.B. No. 12
A BILL TO BE ENTITLED
AN ACT
1-1 relating to administrative hearings for the Texas Natural Resource
1-2 Conservation Commission provided by the State Office of
1-3 Administrative Hearings.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter H, Chapter 5, Water Code, is amended
1-6 to read as follows:
1-7 SUBCHAPTER H. DELEGATION OF HEARINGS <OFFICE OF HEARING EXAMINERS>
1-8 Sec. 5.311. <CREATION OF OFFICE. (a) The commission shall
1-9 create an office of hearing examiners to assist the commission in
1-10 carrying out its powers and duties under this code.>
1-11 <(b) The office of hearing examiners is independent of the
1-12 executive director and the divisions of the commission and is under
1-13 the exclusive control of the commission.>
1-14 <Sec. 5.312. ORGANIZATION OF OFFICE OF HEARING EXAMINERS.
1-15 (a) The office of hearing examiners shall be under the direction
1-16 of the chief hearing examiner.>
1-17 <(b) The chief hearing examiner and all assistant hearing
1-18 examiners employed in the office of hearing examiners shall be
1-19 attorneys licensed to practice law in this state and shall be
1-20 employed by the commission.>
1-21 <Sec. 5.313.> DELEGATION OF RESPONSIBILITY. (a) The
1-22 commission may delegate to an administrative law judge of the State
1-23 Office of Administrative Hearings <a hearing examiner> the
2-1 responsibility to hear any matter before the commission.
2-2 (b) The administrative law judge <A hearing examiner shall
2-3 prepare for and hold any hearing as directed by the commission and>
2-4 shall report to the commission on the hearing in the manner
2-5 provided by law.
2-6 Sec. 5.312 <5.314>. TIME LIMIT FOR ISSUANCE OR DENIAL OF
2-7 PERMITS. (a) Except as provided in Subsection (b), all permit
2-8 decisions shall be made within 180 days of the receipt of the
2-9 permit application or application amendment or the determination of
2-10 administrative completeness, whichever is later.
2-11 (b) This section does not apply to permits issued under
2-12 federally delegated or approved programs unless allowed under that
2-13 program.
2-14 Sec. 5.313. HEARING EXAMINERS REFERENCED IN LAW. Any
2-15 reference in law to a hearing examiner who has a duty related to a
2-16 case pending before the commission means an administrative law
2-17 judge of the State Office of Administrative Hearings.
2-18 Sec. 5.314. STATE OFFICE OF ADMINISTRATIVE HEARINGS FEE.
2-19 The State Office of Administrative Hearings shall charge the
2-20 commission a fixed annual fee rather than an hourly rate for
2-21 services rendered by the State Office of Administrative Hearings to
2-22 the commission. The State Office of Administrative Hearings and
2-23 the commission shall negotiate the amount of the fixed fee
2-24 biennially, subject to the approval of the governor, to coincide
2-25 with the commission's legislative appropriations request.
3-1 SECTION 2. Subsections (a), (b), and (c), Section 26.021,
3-2 Water Code, are amended to read as follows:
3-3 (a) Except for those hearings required to be held before the
3-4 commission under Section 26.0191(b) of this code, the commission
3-5 may authorize the chief administrative law judge of the State
3-6 Office of Administrative Hearings <hearing examiner> to call and
3-7 hold hearings on any subject on which the commission may hold a
3-8 hearing.
3-9 (b) The commission may also authorize the chief
3-10 administrative law judge <hearing examiner> to delegate to one or
3-11 more administrative law judges <hearing examiners> the authority to
3-12 hold any hearing the chief administrative law judge calls <called
3-13 by him>.
3-14 (c) At any hearing called under this section, the chief
3-15 administrative law judge or the administrative law judge to whom a
3-16 hearing is delegated may <by the chief hearing examiner, he or the
3-17 person delegated the authority by him to hold the hearing is
3-18 empowered to> administer oaths and receive evidence.
3-19 SECTION 3. Subsections (a), (b), and (c), Section 28.029,
3-20 Water Code, are amended to read as follows:
3-21 (a) The commission may authorize the chief administrative
3-22 law judge of the State Office of Administrative Hearings <hearing
3-23 examiner> to call and hold hearings on any subject on which the
3-24 commission may hold a hearing.
3-25 (b) The commission may also authorize the chief
4-1 administrative law judge <hearing examiner> to delegate to one or
4-2 more administrative law judges <hearing examiners> the authority to
4-3 hold any hearing the chief administrative law judge calls <called
4-4 by him>.
4-5 (c) At any hearing called under this section, the chief
4-6 administrative law judge or the administrative law judge to whom a
4-7 hearing is delegated may <by the chief hearing examiner, he or the
4-8 person delegated the authority by him to hold the hearing is
4-9 empowered to> administer oaths and receive evidence.
4-10 SECTION 4. Subsections (a), (b), and (c), Section 31.009,
4-11 Water Code, are amended to read as follows:
4-12 (a) The commission may authorize the chief administrative
4-13 law judge of the State Office of Administrative Hearings <hearing
4-14 examiner> to call and hold hearings on any subject on which the
4-15 commission may hold a hearing.
4-16 (b) The commission may also authorize the chief
4-17 administrative law judge <hearing examiner> to delegate to one or
4-18 more administrative law judges <hearing examiners> the authority to
4-19 hold a hearing the chief administrative law judge calls <called by
4-20 the chief hearing examiner>.
4-21 (c) At a hearing called under this section, the chief
4-22 administrative law judge or the administrative law judge to whom a
4-23 hearing is delegated <by the chief hearing examiner, the chief
4-24 hearing examiner or the person delegated the authority by him to
4-25 hold the hearing> may administer oaths and receive evidence.
5-1 SECTION 5. Subsections (a) and (b), Section 361.0831, Health
5-2 and Safety Code, are amended to read as follows:
5-3 (a) Unless required for the disposition of ex parte matters
5-4 authorized by law, or unless permitted by Section 2001.061,
5-5 Government Code <17, Administrative Procedure and Texas Register
5-6 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>, a hearings
5-7 examiner <of the commission> may not communicate, directly or
5-8 indirectly, with any employee of the commission <who is not an
5-9 employee of the office of hearings examiners>, any commissioner, or
5-10 any party to a hearing conducted by the commission in connection
5-11 with any issue of fact or law pertaining to a contested case in
5-12 which the commission or party is involved.
5-13 (b) Except for communications allowed under Subsection (a),
5-14 an employee of the commission, a commissioner, or a party to a
5-15 hearing conducted by the commission may not attempt to influence
5-16 the finding of facts or the application of law or rules by a
5-17 hearings examiner <of the commission> except by proper evidence,
5-18 pleadings, and legal argument with notice and opportunity for all
5-19 parties to participate.
5-20 SECTION 6. Section 361.0832, Health and Safety Code, is
5-21 amended by amending Subsection (a) and by adding Subsection (g) to
5-22 read as follows:
5-23 (a) After hearing evidence and receiving legal arguments, a
5-24 hearings examiner <of the commission> shall make findings of fact,
5-25 conclusions of law, and any ultimate findings required by statute,
6-1 all of which shall be separately stated. The hearings examiner
6-2 shall make a proposal for decision to the commission and shall
6-3 serve the proposal for decision on all parties. The commission
6-4 shall consider and act on the proposal for decision.
6-5 (g) To the extent of a conflict between this section and
6-6 Section 2001.058(e), Government Code, this section controls.
6-7 SECTION 7. As soon as practicable, the chief administrative
6-8 law judge of the State Office of Administrative Hearings shall
6-9 consult with the chief administrative hearing examiner of the Texas
6-10 Natural Resource Conservation Commission to assist the judge in:
6-11 (1) determining the number of and requirements for
6-12 administrative law judges needed to conduct Texas Natural Resource
6-13 Conservation Commission hearings effectively; and
6-14 (2) making necessary administrative changes in the
6-15 State Office of Administrative Hearings.
6-16 SECTION 8. (a) On September 1, 1995, all equipment, data,
6-17 facilities, and other items of the office of hearing examiners of
6-18 the Texas Natural Resource Conservation Commission, are transferred
6-19 to the State Office of Administrative Hearings.
6-20 (b) If a hearing examiner or administrative law judge
6-21 employed by the office of hearing examiners of the Texas Natural
6-22 Resource Conservation Commission is hearing a case pending before
6-23 the commission as of the effective date of this Act and that
6-24 individual is offered and accepts a position as an administrative
6-25 law judge of the State Office of Administrative Hearings, the chief
7-1 administrative law judge of the office shall assign the case to
7-2 that individual to render a proposal for decision.
7-3 SECTION 9. (a) Except as provided in Subsection (b) of this
7-4 section, this Act takes effect September 1, 1995.
7-5 (b) Section 7 of this Act takes effect immediately.
7-6 SECTION 10. The importance of this legislation and the
7-7 crowded condition of the calendars in both houses create an
7-8 emergency and an imperative public necessity that the
7-9 constitutional rule requiring bills to be read on three several
7-10 days in each house be suspended, and this rule is hereby suspended,
7-11 and that this Act take effect and be in force from and after its
7-12 passage, and it is so enacted.