74R10161 JJT-D
By Montford S.B. No. 12
Substitute the following for S.B. No. 12:
By Counts C.S.S.B. No. 12
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to administrative hearings for the Texas Natural Resource
1-3 Conservation Commission provided by the State Office of
1-4 Administrative Hearings.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subchapter C, Chapter 2003, Government Code, is
1-7 amended by adding Sections 2003.047 and 2003.048 to read as
1-8 follows:
1-9 Sec. 2003.047. NATURAL RESOURCE CONSERVATION DIVISION. (a)
1-10 The office shall establish a natural resource conservation division
1-11 to perform the contested case hearings for the Texas Natural
1-12 Resource Conservation Commission.
1-13 (b) The division shall conduct hearings relating to
1-14 contested cases before the commission, other than a hearing
1-15 conducted by one or more commissioners. The commission by rule may
1-16 delegate to the division the responsibility to hear any other
1-17 matter before the commission if consistent with the
1-18 responsibilities of the division.
1-19 (c) Only an administrative law judge in the division may
1-20 conduct a hearing on behalf of the commission. An administrative
1-21 law judge in the division may conduct hearings for other state
1-22 agencies as time allows. The office may transfer an administrative
1-23 law judge to the division on a permanent or temporary basis and may
1-24 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:
2-26 (1) filing a motion or pleading that is groundless and
2-27 brought:
3-1 (A) in bad faith;
3-2 (B) for the purpose of harassment; or
3-3 (C) for any other improper purpose, such as to
3-4 cause unnecessary delay or needless increase in the cost of the
3-5 proceeding;
3-6 (2) abuse of the discovery process in seeking, making,
3-7 or resisting discovery; or
3-8 (3) failure to obey an order of the administrative law
3-9 judge or the commission.
3-10 (h) A sanction imposed under Subsection (g) may include, as
3-11 appropriate and justified, issuance of an order:
3-12 (1) disallowing further discovery of any kind or of a
3-13 particular kind by the offending party;
3-14 (2) charging all or any part of the expenses of
3-15 discovery against the offending party or its representatives;
3-16 (3) holding that designated facts be considered
3-17 admitted for purposes of the proceeding;
3-18 (4) refusing to allow the offending party to support
3-19 or oppose a designated claim or defense or prohibiting the party
3-20 from introducing designated matters in evidence;
3-21 (5) disallowing in whole or in part requests for
3-22 relief by the offending party and excluding evidence in support of
3-23 those requests; and
3-24 (6) striking pleadings or testimony, or both, in whole
3-25 or in part.
3-26 Sec. 2003.048. NATURAL RESOURCE CONSERVATION COMMISSION
3-27 HEARINGS FEE. The office shall charge the Texas Natural Resource
4-1 Conservation Commission a fixed annual fee rather than an hourly
4-2 rate for services rendered by the office to the commission. The
4-3 office and the Texas Natural Resource Conservation Commission shall
4-4 negotiate the amount of the fixed fee biennially, subject to the
4-5 approval of the governor, to coincide with the commission's
4-6 legislative appropriations request.
4-7 SECTION 2. Subchapter H, Chapter 5, Water Code, is amended
4-8 to read as follows:
4-9 SUBCHAPTER H. DELEGATION OF HEARINGS <OFFICE OF HEARING EXAMINERS>
4-10 Sec. 5.311. <CREATION OF OFFICE. (a) The commission shall
4-11 create an office of hearing examiners to assist the commission in
4-12 carrying out its powers and duties under this code.>
4-13 <(b) The office of hearing examiners is independent of the
4-14 executive director and the divisions of the commission and is under
4-15 the exclusive control of the commission.>
4-16 <Sec. 5.312. ORGANIZATION OF OFFICE OF HEARING EXAMINERS.
4-17 (a) The office of hearing examiners shall be under the direction
4-18 of the chief hearing examiner.>
4-19 <(b) The chief hearing examiner and all assistant hearing
4-20 examiners employed in the office of hearing examiners shall be
4-21 attorneys licensed to practice law in this state and shall be
4-22 employed by the commission.>
4-23 <Sec. 5.313.> DELEGATION OF RESPONSIBILITY. (a) The
4-24 commission may delegate to an administrative law judge of the State
4-25 Office of Administrative Hearings <a hearing examiner> the
4-26 responsibility to hear any matter before the commission.
4-27 (b) The administrative law judge <A hearing examiner shall
5-1 prepare for and hold any hearing as directed by the commission and>
5-2 shall report to the commission on the hearing in the manner
5-3 provided by law.
5-4 Sec. 5.312 <5.314>. TIME LIMIT FOR ISSUANCE OR DENIAL OF
5-5 PERMITS. (a) Except as provided in Subsection (b), all permit
5-6 decisions shall be made within 180 days of the receipt of the
5-7 permit application or application amendment or the determination of
5-8 administrative completeness, whichever is later.
5-9 (b) This section does not apply to permits issued under
5-10 federally delegated or approved programs unless allowed under that
5-11 program.
5-12 Sec. 5.313. HEARING EXAMINERS REFERENCED IN LAW. Any
5-13 reference in law to a hearing examiner who has a duty related to a
5-14 case pending before the commission means an administrative law
5-15 judge of the State Office of Administrative Hearings.
5-16 SECTION 3. Subsections (a), (b), and (c), Section 26.021,
5-17 Water Code, are amended to read as follows:
5-18 (a) Except for those hearings required to be held before the
5-19 commission under Section 26.0191(b) of this code, the commission
5-20 may authorize the chief administrative law judge of the State
5-21 Office of Administrative Hearings <hearing examiner> to call and
5-22 hold hearings on any subject on which the commission may hold a
5-23 hearing.
5-24 (b) The commission may also authorize the chief
5-25 administrative law judge <hearing examiner> to delegate to one or
5-26 more administrative law judges <hearing examiners> the authority to
5-27 hold any hearing the chief administrative law judge calls <called
6-1 by him>.
6-2 (c) At any hearing called under this section, the chief
6-3 administrative law judge or the administrative law judge to whom a
6-4 hearing is delegated may <by the chief hearing examiner, he or the
6-5 person delegated the authority by him to hold the hearing is
6-6 empowered to> administer oaths and receive evidence.
6-7 SECTION 4. Subsections (a), (b), and (c), Section 28.029,
6-8 Water Code, are amended to read as follows:
6-9 (a) The commission may authorize the chief administrative
6-10 law judge of the State Office of Administrative Hearings <hearing
6-11 examiner> to call and hold hearings on any subject on which the
6-12 commission may hold a hearing.
6-13 (b) The commission may also authorize the chief
6-14 administrative law judge <hearing examiner> to delegate to one or
6-15 more administrative law judges <hearing examiners> the authority to
6-16 hold any hearing the chief administrative law judge calls <called
6-17 by him>.
6-18 (c) At any hearing called under this section, the chief
6-19 administrative law judge or the administrative law judge to whom a
6-20 hearing is delegated may <by the chief hearing examiner, he or the
6-21 person delegated the authority by him to hold the hearing is
6-22 empowered to> administer oaths and receive evidence.
6-23 SECTION 5. Subsections (a), (b), and (c), Section 31.009,
6-24 Water Code, are amended to read as follows:
6-25 (a) The commission may authorize the chief administrative
6-26 law judge of the State Office of Administrative Hearings <hearing
6-27 examiner> to call and hold hearings on any subject on which the
7-1 commission may hold a hearing.
7-2 (b) The commission may also authorize the chief
7-3 administrative law judge <hearing examiner> to delegate to one or
7-4 more administrative law judges <hearing examiners> the authority to
7-5 hold a hearing the chief administrative law judge calls <called by
7-6 the chief hearing examiner>.
7-7 (c) At a hearing called under this section, the chief
7-8 administrative law judge or the administrative law judge to whom a
7-9 hearing is delegated <by the chief hearing examiner, the chief
7-10 hearing examiner or the person delegated the authority by him to
7-11 hold the hearing> may administer oaths and receive evidence.
7-12 SECTION 6. Subsections (a) and (b), Section 361.0831, Health
7-13 and Safety Code, are amended to read as follows:
7-14 (a) Unless required for the disposition of ex parte matters
7-15 authorized by law, or unless permitted by Section 2001.061,
7-16 Government Code <17, Administrative Procedure and Texas Register
7-17 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>, a hearings
7-18 examiner <of the commission> may not communicate, directly or
7-19 indirectly, with any employee of the commission <who is not an
7-20 employee of the office of hearings examiners>, any commissioner, or
7-21 any party to a hearing conducted by the commission in connection
7-22 with any issue of fact or law pertaining to a contested case in
7-23 which the commission or party is involved.
7-24 (b) Except for communications allowed under Subsection (a),
7-25 an employee of the commission, a commissioner, or a party to a
7-26 hearing conducted by the commission may not attempt to influence
7-27 the finding of facts or the application of law or rules by a
8-1 hearings examiner <of the commission> except by proper evidence,
8-2 pleadings, and legal argument with notice and opportunity for all
8-3 parties to participate.
8-4 SECTION 7. Section 361.0832, Health and Safety Code, is
8-5 amended by amending Subsection (a) and by adding Subsection (g) to
8-6 read as follows:
8-7 (a) After hearing evidence and receiving legal arguments, a
8-8 hearings examiner <of the commission> shall make findings of fact,
8-9 conclusions of law, and any ultimate findings required by statute,
8-10 all of which shall be separately stated. The hearings examiner
8-11 shall make a proposal for decision to the commission and shall
8-12 serve the proposal for decision on all parties. The commission
8-13 shall consider and act on the proposal for decision.
8-14 (g) To the extent of a conflict between this section and
8-15 Section 2001.058(e), Government Code, this section controls.
8-16 SECTION 8. As soon as practicable, the chief administrative
8-17 law judge of the State Office of Administrative Hearings shall
8-18 consult with the chief administrative hearing examiner of the Texas
8-19 Natural Resource Conservation Commission to assist the judge in:
8-20 (1) determining the number of and requirements for
8-21 administrative law judges needed to conduct Texas Natural Resource
8-22 Conservation Commission hearings effectively; and
8-23 (2) making necessary administrative changes in the
8-24 State Office of Administrative Hearings.
8-25 SECTION 9. (a) On September 1, 1995, all equipment, data,
8-26 facilities, and other items of the office of hearing examiners of
8-27 the Texas Natural Resource Conservation Commission are transferred
9-1 to the State Office of Administrative Hearings.
9-2 (b) If a hearing examiner or administrative law judge
9-3 employed by the office of hearing examiners of the Texas Natural
9-4 Resource Conservation Commission is hearing a case pending before
9-5 the commission as of the effective date of this Act and that
9-6 individual is offered and accepts a position as an administrative
9-7 law judge of the State Office of Administrative Hearings, the chief
9-8 administrative law judge of the office shall assign the case to
9-9 that individual to render a proposal for decision.
9-10 SECTION 10. (a) Except as provided in Subsection (b) of
9-11 this section, this Act takes effect September 1, 1995.
9-12 (b) Section 8 of this Act takes effect immediately.
9-13 SECTION 11. The importance of this legislation and the
9-14 crowded condition of the calendars in both houses create an
9-15 emergency and an imperative public necessity that the
9-16 constitutional rule requiring bills to be read on three several
9-17 days in each house be suspended, and this rule is hereby suspended,
9-18 and that this Act take effect and be in force from and after its
9-19 passage, and it is so enacted.