1-1 By: Montford S.B. No. 12
1-2 (In the Senate - Filed March 10, 1995; March 15, 1995, read
1-3 first time and referred to Committee on Natural Resources;
1-4 March 30, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 11, Nays 0; March 30, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 12 By: Montford
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to administrative hearings for the Texas Natural Resource
1-11 Conservation Commission provided by the State Office of
1-12 Administrative Hearings.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Subchapter H, Chapter 5, Water Code, is amended
1-15 to read as follows:
1-16 SUBCHAPTER H. DELEGATION OF HEARINGS <OFFICE OF HEARING EXAMINERS>
1-17 Sec. 5.311. <CREATION OF OFFICE. (a) The commission shall
1-18 create an office of hearing examiners to assist the commission in
1-19 carrying out its powers and duties under this code.>
1-20 <(b) The office of hearing examiners is independent of the
1-21 executive director and the divisions of the commission and is under
1-22 the exclusive control of the commission.>
1-23 <Sec. 5.312. ORGANIZATION OF OFFICE OF HEARING EXAMINERS.
1-24 (a) The office of hearing examiners shall be under the direction
1-25 of the chief hearing examiner.>
1-26 <(b) The chief hearing examiner and all assistant hearing
1-27 examiners employed in the office of hearing examiners shall be
1-28 attorneys licensed to practice law in this state and shall be
1-29 employed by the commission.>
1-30 <Sec. 5.313.> DELEGATION OF RESPONSIBILITY. (a) The
1-31 commission may delegate to an administrative law judge of the State
1-32 Office of Administrative Hearings <a hearing examiner> the
1-33 responsibility to hear any matter before the commission.
1-34 (b) The administrative law judge <A hearing examiner shall
1-35 prepare for and hold any hearing as directed by the commission and>
1-36 shall report to the commission on the hearing in the manner
1-37 provided by law.
1-38 Sec. 5.312 <5.314>. TIME LIMIT FOR ISSUANCE OR DENIAL OF
1-39 PERMITS. (a) Except as provided in Subsection (b), all permit
1-40 decisions shall be made within 180 days of the receipt of the
1-41 permit application or application amendment or the determination of
1-42 administrative completeness, whichever is later.
1-43 (b) This section does not apply to permits issued under
1-44 federally delegated or approved programs unless allowed under that
1-45 program.
1-46 Sec. 5.313. HEARING EXAMINERS REFERENCED IN LAW. Any
1-47 reference in law to a hearing examiner who has a duty related to a
1-48 case pending before the commission means an administrative law
1-49 judge of the State Office of Administrative Hearings.
1-50 Sec. 5.314. STATE OFFICE OF ADMINISTRATIVE HEARINGS FEE.
1-51 The State Office of Administrative Hearings shall charge the
1-52 commission a fixed annual fee rather than an hourly rate for
1-53 services rendered by the utility divisions to the commission. The
1-54 State Office of Administrative Hearings and the commission shall
1-55 negotiate the amount of the fixed fee biennially, subject to the
1-56 approval of the governor, to coincide with the commission's
1-57 legislative appropriations request.
1-58 SECTION 2. Subsections (a), (b), and (c), Section 26.021,
1-59 Water Code, are amended to read as follows:
1-60 (a) Except for those hearings required to be held before the
1-61 commission under Section 26.0191(b) of this code, the commission
1-62 may authorize the chief administrative law judge of the State
1-63 Office of Administrative Hearings <hearing examiner> to call and
1-64 hold hearings on any subject on which the commission may hold a
1-65 hearing.
1-66 (b) The commission may also authorize the chief
1-67 administrative law judge <hearing examiner> to delegate to one or
1-68 more administrative law judges <hearing examiners> the authority to
2-1 hold any hearing the chief administrative law judge calls <called
2-2 by him>.
2-3 (c) At any hearing called under this section, the chief
2-4 administrative law judge or the administrative law judge to whom a
2-5 hearing is delegated may <by the chief hearing examiner, he or the
2-6 person delegated the authority by him to hold the hearing is
2-7 empowered to> administer oaths and receive evidence.
2-8 SECTION 3. Subsections (a), (b), and (c), Section 28.029,
2-9 Water Code, are amended to read as follows:
2-10 (a) The commission may authorize the chief administrative
2-11 law judge of the State Office of Administrative Hearings <hearing
2-12 examiner> to call and hold hearings on any subject on which the
2-13 commission may hold a hearing.
2-14 (b) The commission may also authorize the chief
2-15 administrative law judge <hearing examiner> to delegate to one or
2-16 more administrative law judges <hearing examiners> the authority to
2-17 hold any hearing the chief administrative law judge calls <called
2-18 by him>.
2-19 (c) At any hearing called under this section, the chief
2-20 administrative law judge or the administrative law judge to whom a
2-21 hearing is delegated may <by the chief hearing examiner, he or the
2-22 person delegated the authority by him to hold the hearing is
2-23 empowered to> administer oaths and receive evidence.
2-24 SECTION 4. Subsections (a), (b), and (c), Section 31.009,
2-25 Water Code, are amended to read as follows:
2-26 (a) The commission may authorize the chief administrative
2-27 law judge of the State Office of Administrative Hearings <hearing
2-28 examiner> to call and hold hearings on any subject on which the
2-29 commission may hold a hearing.
2-30 (b) The commission may also authorize the chief
2-31 administrative law judge <hearing examiner> to delegate to one or
2-32 more administrative law judges <hearing examiners> the authority to
2-33 hold a hearing the chief administrative law judge calls <called by
2-34 the chief hearing examiner>.
2-35 (c) At a hearing called under this section, the chief
2-36 administrative law judge or the administrative law judge to whom a
2-37 hearing is delegated <by the chief hearing examiner, the chief
2-38 hearing examiner or the person delegated the authority by him to
2-39 hold the hearing> may administer oaths and receive evidence.
2-40 SECTION 5. Subsections (a) and (b), Section 361.0831, Health
2-41 and Safety Code, are amended to read as follows:
2-42 (a) Unless required for the disposition of ex parte matters
2-43 authorized by law, or unless permitted by Section 2001.061,
2-44 Government Code <17, Administrative Procedure and Texas Register
2-45 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>, a hearings
2-46 examiner <of the commission> may not communicate, directly or
2-47 indirectly, with any employee of the commission <who is not an
2-48 employee of the office of hearings examiners>, any commissioner, or
2-49 any party to a hearing conducted by the commission in connection
2-50 with any issue of fact or law pertaining to a contested case in
2-51 which the commission or party is involved.
2-52 (b) Except for communications allowed under Subsection (a),
2-53 an employee of the commission, a commissioner, or a party to a
2-54 hearing conducted by the commission may not attempt to influence
2-55 the finding of facts or the application of law or rules by a
2-56 hearings examiner <of the commission> except by proper evidence,
2-57 pleadings, and legal argument with notice and opportunity for all
2-58 parties to participate.
2-59 SECTION 6. Section 361.0832, Health and Safety Code, is
2-60 amended by amending Subsection (a) and by adding Subsection (g) to
2-61 read as follows:
2-62 (a) After hearing evidence and receiving legal arguments, a
2-63 hearings examiner <of the commission> shall make findings of fact,
2-64 conclusions of law, and any ultimate findings required by statute,
2-65 all of which shall be separately stated. The hearings examiner
2-66 shall make a proposal for decision to the commission and shall
2-67 serve the proposal for decision on all parties. The commission
2-68 shall consider and act on the proposal for decision.
2-69 (g) To the extent of a conflict between this section and
2-70 Section 2001.058(e), Government Code, this section controls.
3-1 SECTION 7. As soon as practicable, the chief administrative
3-2 law judge of the State Office of Administrative Hearings shall
3-3 consult with the chief administrative hearing examiner of the Texas
3-4 Natural Resource Conservation Commission to assist the judge in:
3-5 (1) determining the number of and requirements for
3-6 administrative law judges needed to conduct Texas Natural Resource
3-7 Conservation Commission hearings effectively; and
3-8 (2) making necessary administrative changes in the
3-9 State Office of Administrative Hearings.
3-10 SECTION 8. (a) On September 1, 1995, all equipment, data,
3-11 facilities, and other items of the office of hearing examiners of
3-12 the Texas Natural Resource Conservation Commission, are transferred
3-13 to the State Office of Administrative Hearings.
3-14 (b) If a hearing examiner or administrative law judge
3-15 employed by the office of hearing examiners of the Texas Natural
3-16 Resource Conservation Commission is hearing a case pending before
3-17 the commission as of the effective date of this Act and that
3-18 individual is offered and accepts a position as an administrative
3-19 law judge of the State Office of Administrative Hearings, the chief
3-20 administrative law judge of the office shall assign the case to
3-21 that individual to render a proposal for decision.
3-22 SECTION 9. (a) Except as provided in Subsection (b) of this
3-23 section, this Act takes effect September 1, 1995.
3-24 (b) Section 7 of this Act takes effect immediately.
3-25 SECTION 10. The importance of this legislation and the
3-26 crowded condition of the calendars in both houses create an
3-27 emergency and an imperative public necessity that the
3-28 constitutional rule requiring bills to be read on three several
3-29 days in each house be suspended, and this rule is hereby suspended,
3-30 and that this Act take effect and be in force from and after its
3-31 passage, and it is so enacted.
3-32 * * * * *