S.B. No. 12
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 C, Chapter 2003, Government Code, is
1-6 amended by adding Sections 2003.047 and 2003.048 to read as
1-7 follows:
1-8 Sec. 2003.047. NATURAL RESOURCE CONSERVATION DIVISION.
1-9 (a) The office shall establish a natural resource conservation
1-10 division to perform the contested case hearings for the Texas
1-11 Natural Resource Conservation Commission.
1-12 (b) The division shall conduct hearings relating to
1-13 contested cases before the commission, other than a hearing
1-14 conducted by one or more commissioners. The commission by rule may
1-15 delegate to the division the responsibility to hear any other
1-16 matter before the commission if consistent with the
1-17 responsibilities of the division.
1-18 (c) Only an administrative law judge in the division may
1-19 conduct a hearing on behalf of the commission. An administrative
1-20 law judge in the division may conduct hearings for other state
1-21 agencies as time allows. The office may transfer an administrative
1-22 law judge to the division on a permanent or temporary basis and may
1-23 contract with qualified individuals to serve as temporary
2-1 administrative law judges as necessary.
2-2 (d) To be eligible to preside at a hearing on behalf of the
2-3 commission, an administrative law judge, regardless of temporary or
2-4 permanent status, must be licensed to practice law in this state
2-5 and have the expertise necessary to conduct hearings regarding
2-6 technical or other specialized subjects that may come before the
2-7 commission.
2-8 (e) When the office receives jurisdiction of a proceeding,
2-9 the commission shall provide to the administrative law judge a list
2-10 of issues or areas that must be addressed. In addition, the
2-11 commission may identify and provide to the administrative law judge
2-12 at any time additional issues or areas that must be addressed.
2-13 (f) The office and the commission jointly shall adopt rules
2-14 providing for certification to the commission of an issue that
2-15 involves an ultimate finding of compliance with or satisfaction of
2-16 a statutory standard the determination of which is committed to the
2-17 discretion or judgment of the commission by law. The rules must
2-18 address, at a minimum, the issues that are appropriate for
2-19 certification and the procedure to be used in certifying the issue.
2-20 Each agency shall publish the jointly adopted rules.
2-21 (g) An administrative law judge hearing a case on behalf of
2-22 the commission, on the judge's own motion or on motion of a party
2-23 and after notice and an opportunity for a hearing, may impose
2-24 appropriate sanctions as provided by Subsection (h) against a party
2-25 or its representative for:
3-1 (1) filing a motion or pleading that is groundless and
3-2 brought:
3-3 (A) in bad faith;
3-4 (B) for the purpose of harassment; or
3-5 (C) for any other improper purpose, such as to
3-6 cause unnecessary delay or needless increase in the cost of the
3-7 proceeding;
3-8 (2) abuse of the discovery process in seeking, making,
3-9 or resisting discovery; or
3-10 (3) failure to obey an order of the administrative law
3-11 judge or the commission.
3-12 (h) A sanction imposed under Subsection (g) may include, as
3-13 appropriate and justified, issuance of an order:
3-14 (1) disallowing further discovery of any kind or of a
3-15 particular kind by the offending party;
3-16 (2) charging all or any part of the expenses of
3-17 discovery against the offending party or its representatives;
3-18 (3) holding that designated facts be considered
3-19 admitted for purposes of the proceeding;
3-20 (4) refusing to allow the offending party to support
3-21 or oppose a designated claim or defense or prohibiting the party
3-22 from introducing designated matters in evidence;
3-23 (5) disallowing in whole or in part requests for
3-24 relief by the offending party and excluding evidence in support of
3-25 those requests; and
4-1 (6) striking pleadings or testimony, or both, in whole
4-2 or in part.
4-3 (i)(1) After hearing evidence and receiving legal argument,
4-4 an administrative law judge shall make findings of fact,
4-5 conclusions of law, and any ultimate findings required by statute,
4-6 all of which shall be separately stated. The administrative law
4-7 judge shall make a proposal for decision to the commission and
4-8 shall serve the proposal for decision on all parties. An
4-9 opportunity shall be given to each party to file exceptions to the
4-10 proposal for decision and briefs related to the issues addressed in
4-11 the proposal for decision. The commission shall consider and act
4-12 on the proposal for decision.
4-13 (2) Except as provided in Section 361.0832, Health and
4-14 Safety Code, the commission shall consider the proposal for
4-15 decision prepared by the administrative law judge, the exceptions
4-16 of the parties, and the briefs and argument of the parties. The
4-17 commission may amend the proposal for decision, including any
4-18 finding of fact, but any such amendment thereto and order shall be
4-19 based solely on the record made before the administrative law
4-20 judge. Any such amendment by the commission shall be accompanied
4-21 by an explanation of the basis of the amendment. The commission
4-22 may also refer the matter back to the administrative law judge to
4-23 reconsider any findings and conclusions set forth in the proposal
4-24 for decision or take additional evidence or to make additional
4-25 findings of fact or conclusions of law. The commission shall serve
5-1 a copy of the commission's order, including its finding of facts
5-2 and conclusions of law, on each party.
5-3 (3) The provisions of Chapter 2001, shall apply to
5-4 contested case hearings for the commission to the extent not
5-5 inconsistent with this section.
5-6 Sec. 2003.048. NATURAL RESOURCE CONSERVATION COMMISSION
5-7 HEARINGS FEE. The office shall charge the Texas Natural Resource
5-8 Conservation Commission a fixed annual fee rather than an hourly
5-9 rate for services rendered by the office to the commission. The
5-10 office and the Texas Natural Resource Conservation Commission shall
5-11 negotiate the amount of the fixed fee biennially, subject to the
5-12 approval of the governor, to coincide with the commission's
5-13 legislative appropriations request.
5-14 SECTION 2. Subchapter H, Chapter 5, Water Code, is amended
5-15 to read as follows:
5-16 SUBCHAPTER H. DELEGATION OF HEARINGS
5-17 <OFFICE OF HEARING EXAMINERS>
5-18 Sec. 5.311. <CREATION OF OFFICE. (a) The commission shall
5-19 create an office of hearing examiners to assist the commission in
5-20 carrying out its powers and duties under this code.>
5-21 <(b) The office of hearing examiners is independent of the
5-22 executive director and the divisions of the commission and is under
5-23 the exclusive control of the commission.>
5-24 <Sec. 5.312. ORGANIZATION OF OFFICE OF HEARING EXAMINERS.
5-25 (a) The office of hearing examiners shall be under the direction
6-1 of the chief hearing examiner.>
6-2 <(b) The chief hearing examiner and all assistant hearing
6-3 examiners employed in the office of hearing examiners shall be
6-4 attorneys licensed to practice law in this state and shall be
6-5 employed by the commission.>
6-6 <Sec. 5.313.> DELEGATION OF RESPONSIBILITY. (a) The
6-7 commission may delegate to an administrative law judge of the State
6-8 Office of Administrative Hearings <a hearing examiner> the
6-9 responsibility to hear any matter before the commission.
6-10 (b) The administrative law judge <A hearing examiner shall
6-11 prepare for and hold any hearing as directed by the commission and>
6-12 shall report to the commission on the hearing in the manner
6-13 provided by law.
6-14 Sec. 5.312 <5.314>. TIME LIMIT FOR ISSUANCE OR DENIAL OF
6-15 PERMITS. (a) Except as provided in Subsection (b), all permit
6-16 decisions shall be made within 180 days of the receipt of the
6-17 permit application or application amendment or the determination of
6-18 administrative completeness, whichever is later.
6-19 (b) This section does not apply to permits issued under
6-20 federally delegated or approved programs unless allowed under that
6-21 program.
6-22 Sec. 5.313. HEARING EXAMINERS REFERENCED IN LAW. Any
6-23 reference in law to a hearing examiner who has a duty related to a
6-24 case pending before the commission means an administrative law
6-25 judge of the State Office of Administrative Hearings.
7-1 SECTION 3. Subsections (a), (b), and (c), Section 26.021,
7-2 Water Code, are amended to read as follows:
7-3 (a) Except for those hearings required to be held before the
7-4 commission under Section 26.0191(b) of this code, the commission
7-5 may authorize the chief administrative law judge of the State
7-6 Office of Administrative Hearings <hearing examiner> to call and
7-7 hold hearings on any subject on which the commission may hold a
7-8 hearing.
7-9 (b) The commission may also authorize the chief
7-10 administrative law judge <hearing examiner> to delegate to one or
7-11 more administrative law judges <hearing examiners> the authority to
7-12 hold any hearing the chief administrative law judge calls <called
7-13 by him>.
7-14 (c) At any hearing called under this section, the chief
7-15 administrative law judge or the administrative law judge to whom a
7-16 hearing is delegated may <by the chief hearing examiner, he or the
7-17 person delegated the authority by him to hold the hearing is
7-18 empowered to> administer oaths and receive evidence.
7-19 SECTION 4. Subsections (a), (b), and (c), Section 28.029,
7-20 Water Code, are amended to read as follows:
7-21 (a) The commission may authorize the chief administrative
7-22 law judge of the State Office of Administrative Hearings <hearing
7-23 examiner> to call and hold hearings on any subject on which the
7-24 commission may hold a hearing.
7-25 (b) The commission may also authorize the chief
8-1 administrative law judge <hearing examiner> to delegate to one or
8-2 more administrative law judges <hearing examiners> the authority to
8-3 hold any hearing the chief administrative law judge calls <called
8-4 by him>.
8-5 (c) At any hearing called under this section, the chief
8-6 administrative law judge or the administrative law judge to whom a
8-7 hearing is delegated may <by the chief hearing examiner, he or the
8-8 person delegated the authority by him to hold the hearing is
8-9 empowered to> administer oaths and receive evidence.
8-10 SECTION 5. Subsections (a), (b), and (c), Section 31.009,
8-11 Water Code, are amended to read as follows:
8-12 (a) The commission may authorize the chief administrative
8-13 law judge of the State Office of Administrative Hearings <hearing
8-14 examiner> to call and hold hearings on any subject on which the
8-15 commission may hold a hearing.
8-16 (b) The commission may also authorize the chief
8-17 administrative law judge <hearing examiner> to delegate to one or
8-18 more administrative law judges <hearing examiners> the authority to
8-19 hold a hearing the chief administrative law judge calls <called by
8-20 the chief hearing examiner>.
8-21 (c) At a hearing called under this section, the chief
8-22 administrative law judge or the administrative law judge to whom a
8-23 hearing is delegated <by the chief hearing examiner, the chief
8-24 hearing examiner or the person delegated the authority by him to
8-25 hold the hearing> may administer oaths and receive evidence.
9-1 SECTION 6. Subsections (a) and (b), Section 361.0831, Health
9-2 and Safety Code, are amended to read as follows:
9-3 (a) Unless required for the disposition of ex parte matters
9-4 authorized by law, or unless permitted by Section 2001.061,
9-5 Government Code <17, Administrative Procedure and Texas Register
9-6 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>, a hearings
9-7 examiner <of the commission> may not communicate, directly or
9-8 indirectly, with any employee of the commission <who is not an
9-9 employee of the office of hearings examiners>, any commissioner, or
9-10 any party to a hearing conducted by the commission in connection
9-11 with any issue of fact or law pertaining to a contested case in
9-12 which the commission or party is involved.
9-13 (b) Except for communications allowed under Subsection (a),
9-14 an employee of the commission, a commissioner, or a party to a
9-15 hearing conducted by the commission may not attempt to influence
9-16 the finding of facts or the application of law or rules by a
9-17 hearings examiner <of the commission> except by proper evidence,
9-18 pleadings, and legal argument with notice and opportunity for all
9-19 parties to participate.
9-20 SECTION 7. Section 361.0832, Health and Safety Code, is
9-21 amended by amending Subsection (a) and by adding Subsection (g) to
9-22 read as follows:
9-23 (a) After hearing evidence and receiving legal arguments, a
9-24 hearings examiner <of the commission> shall make findings of fact,
9-25 conclusions of law, and any ultimate findings required by statute,
10-1 all of which shall be separately stated. The hearings examiner
10-2 shall make a proposal for decision to the commission and shall
10-3 serve the proposal for decision on all parties. The commission
10-4 shall consider and act on the proposal for decision.
10-5 (g) To the extent of a conflict between this section and
10-6 Section 2001.058(e), Government Code, this section controls.
10-7 SECTION 8. As soon as practicable, the chief administrative
10-8 law judge of the State Office of Administrative Hearings shall
10-9 consult with the chief administrative hearing examiner of the Texas
10-10 Natural Resource Conservation Commission to assist the judge in:
10-11 (1) determining the number of and requirements for
10-12 administrative law judges needed to conduct Texas Natural Resource
10-13 Conservation Commission hearings effectively; and
10-14 (2) making necessary administrative changes in the
10-15 State Office of Administrative Hearings.
10-16 SECTION 9. (a) On September 1, 1995, all equipment, data,
10-17 facilities, and other items of the office of hearing examiners of
10-18 the Texas Natural Resource Conservation Commission are transferred
10-19 to the State Office of Administrative Hearings.
10-20 (b) If a hearing examiner or administrative law judge
10-21 employed by the office of hearing examiners of the Texas Natural
10-22 Resource Conservation Commission is hearing a case pending before
10-23 the commission as of the effective date of this Act and that
10-24 individual is offered and accepts a position as an administrative
10-25 law judge of the State Office of Administrative Hearings, the chief
11-1 administrative law judge of the office shall assign the case to
11-2 that individual to render a proposal for decision.
11-3 (c) In filling any administrative law judge position that is
11-4 created in the natural resource conservation division of the State
11-5 Office of Administrative Hearings under this Act, the chief
11-6 administrative law judge of the State Office of Administrative
11-7 Hearings shall consider the application of each applicant who,
11-8 immediately before this Act takes effect, is employed as a hearings
11-9 examiner of the Texas Natural Resource Conservation Commission
11-10 before considering any other application for the position.
11-11 SECTION 10. (a) Except as provided in Subsection (b) of
11-12 this section, this Act takes effect September 1, 1995.
11-13 (b) Section 8 of this Act takes effect immediately.
11-14 SECTION 11. The importance of this legislation and the
11-15 crowded condition of the calendars in both houses create an
11-16 emergency and an imperative public necessity that the
11-17 constitutional rule requiring bills to be read on three several
11-18 days in each house be suspended, and this rule is hereby suspended,
11-19 and that this Act take effect and be in force from and after its
11-20 passage, and it is so enacted.