By Sims, Brown S.B. No. 743
74R3328 JJT-D
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 H, Chapter 5, Water Code, is amended
1-7 to read as follows:
1-8 SUBCHAPTER H. DELEGATION OF HEARINGS <OFFICE OF HEARING EXAMINERS>
1-9 Sec. 5.311. <CREATION OF OFFICE. (a) The commission shall
1-10 create an office of hearing examiners to assist the commission in
1-11 carrying out its powers and duties under this code.>
1-12 <(b) The office of hearing examiners is independent of the
1-13 executive director and the divisions of the commission and is under
1-14 the exclusive control of the commission.>
1-15 <Sec. 5.312. ORGANIZATION OF OFFICE OF HEARING EXAMINERS.
1-16 (a) The office of hearing examiners shall be under the direction
1-17 of the chief hearing examiner.>
1-18 <(b) The chief hearing examiner and all assistant hearing
1-19 examiners employed in the office of hearing examiners shall be
1-20 attorneys licensed to practice law in this state and shall be
1-21 employed by the commission.>
1-22 <Sec. 5.313.> DELEGATION OF RESPONSIBILITY. (a) The
1-23 commission may delegate to an administrative law judge of the State
1-24 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 SECTION 2. Sections 26.021(a)-(c), Water Code, are amended
2-19 to read as follows:
2-20 (a) Except for those hearings required to be held before the
2-21 commission under Section 26.0191(b) of this code, the commission
2-22 may authorize the chief administrative law judge of the State
2-23 Office of Administrative Hearings <hearing examiner> to call and
2-24 hold hearings on any subject on which the commission may hold a
2-25 hearing.
2-26 (b) The commission may also authorize the chief
2-27 administrative law judge <hearing examiner> to delegate to one or
3-1 more administrative law judges <hearing examiners> the authority to
3-2 hold any hearing the chief administrative law judge calls <called
3-3 by him>.
3-4 (c) At any hearing called under this section, the chief
3-5 administrative law judge or the administrative law judge to whom a
3-6 hearing is delegated may <by the chief hearing examiner, he or the
3-7 person delegated the authority by him to hold the hearing is
3-8 empowered to> administer oaths and receive evidence.
3-9 SECTION 3. Sections 28.029(a)-(c), Water Code, are amended
3-10 to read as follows:
3-11 (a) The commission may authorize the chief administrative
3-12 law judge of the State Office of Administrative Hearings <hearing
3-13 examiner> to call and hold hearings on any subject on which the
3-14 commission may hold a hearing.
3-15 (b) The commission may also authorize the chief
3-16 administrative law judge <hearing examiner> to delegate to one or
3-17 more administrative law judges <hearing examiners> the authority to
3-18 hold any hearing the chief administrative law judge calls <called
3-19 by him>.
3-20 (c) At any hearing called under this section, the chief
3-21 administrative law judge or the administrative law judge to whom a
3-22 hearing is delegated may <by the chief hearing examiner, he or the
3-23 person delegated the authority by him to hold the hearing is
3-24 empowered to> administer oaths and receive evidence.
3-25 SECTION 4. Sections 31.009(a)-(c), Water Code, are amended
3-26 to read as follows:
3-27 (a) The commission may authorize the chief administrative
4-1 law judge of the State Office of Administrative Hearings <hearing
4-2 examiner> to call and hold hearings on any subject on which the
4-3 commission may hold a hearing.
4-4 (b) The commission may also authorize the chief
4-5 administrative law judge <hearing examiner> to delegate to one or
4-6 more administrative law judges <hearing examiners> the authority to
4-7 hold a hearing the chief administrative law judge calls <called by
4-8 the chief hearing examiner>.
4-9 (c) At a hearing called under this section, the chief
4-10 administrative law judge or the administrative law judge to whom a
4-11 hearing is delegated <by the chief hearing examiner, the chief
4-12 hearing examiner or the person delegated the authority by him to
4-13 hold the hearing> may administer oaths and receive evidence.
4-14 SECTION 5. Sections 361.0831(a) and (b), Health and Safety
4-15 Code, are amended to read as follows:
4-16 (a) Unless required for the disposition of ex parte matters
4-17 authorized by law, or unless permitted by Section 2001.061,
4-18 Government Code <17, Administrative Procedure and Texas Register
4-19 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>, a hearings
4-20 examiner <of the commission> may not communicate, directly or
4-21 indirectly, with any employee of the commission <who is not an
4-22 employee of the office of hearings examiners>, any commissioner, or
4-23 any party to a hearing conducted by the commission in connection
4-24 with any issue of fact or law pertaining to a contested case in
4-25 which the commission or party is involved.
4-26 (b) Except for communications allowed under Subsection (a),
4-27 an employee of the commission, a commissioner, or a party to a
5-1 hearing conducted by the commission may not attempt to influence
5-2 the finding of facts or the application of law or rules by a
5-3 hearings examiner <of the commission> except by proper evidence,
5-4 pleadings, and legal argument with notice and opportunity for all
5-5 parties to participate.
5-6 SECTION 6. Section 361.0832, Health and Safety Code, is
5-7 amended by amending Subsection (a) and by adding Subsection (g) to
5-8 read as follows:
5-9 (a) After hearing evidence and receiving legal arguments, a
5-10 hearings examiner <of the commission> shall make findings of fact,
5-11 conclusions of law, and any ultimate findings required by statute,
5-12 all of which shall be separately stated. The hearings examiner
5-13 shall make a proposal for decision to the commission and shall
5-14 serve the proposal for decision on all parties. The commission
5-15 shall consider and act on the proposal for decision.
5-16 (g) Notwithstanding Section 2001.058(e), Government Code,
5-17 this section applies to a decision of the commission to:
5-18 (1) overturn a finding of fact or a conclusion of law;
5-19 or
5-20 (2) reject a proposal for decision.
5-21 SECTION 7. (a) Not later than January 1, 1996, the chief
5-22 administrative law judge of the State Office of Administrative
5-23 Hearings shall:
5-24 (1) employ administrative law judges who have the
5-25 expertise necessary to conduct hearings regarding technical or
5-26 other specialized subject matters that may come before the Texas
5-27 Natural Resource Conservation Commission; and
6-1 (2) implement all administrative changes necessary for
6-2 the State Office of Administrative Hearings to assume the functions
6-3 of the office of hearing examiners in the Texas Natural Resource
6-4 Conservation Commission.
6-5 (b) The chief administrative law judge of the State Office
6-6 of Administrative Hearings may consult with the chief
6-7 administrative hearing examiner of the Texas Natural Resource
6-8 Conservation Commission to assist the judge in:
6-9 (1) determining the number of and requirements for
6-10 administrative law judges needed to conduct Texas Natural Resource
6-11 Conservation Commission hearings effectively; and
6-12 (2) making necessary administrative changes in the
6-13 State Office of Administrative Hearings.
6-14 SECTION 8. (a) Except as provided by Subsection (b), the
6-15 Texas Natural Resource Conservation Commission shall continue to
6-16 employ a hearing examiner who is hearing a case pending before the
6-17 commission on January 1, 1996, until the examiner renders a
6-18 proposal for decision in the case, and the hearing examiner shall
6-19 continue to hear a case assigned to the examiner as if the
6-20 dissolution of the commission's hearing division had not occurred.
6-21 (b) If the hearing examiner accepts a position as an
6-22 administrative law judge of the State Office of Administrative
6-23 Hearings, the commission shall transfer any case pending before the
6-24 commission that the examiner is hearing to the State Office of
6-25 Administrative Hearings, and the chief administrative law judge of
6-26 the office shall assign the case to that individual to render a
6-27 proposal for decision.
7-1 SECTION 9. (a) On January 1, 1996, all office space and
7-2 facilities, equipment, data, records, case files, and other
7-3 possessions of the hearing division of the Texas Natural Resource
7-4 Conservation Commission are transferred to the State Office of
7-5 Administrative Hearings and the hearing division of the Texas
7-6 Natural Resource Conservation Commission is dissolved.
7-7 (b) The chief administrative law judge of the State Office
7-8 of Administrative Hearings shall:
7-9 (1) make available to a hearing examiner of the Texas
7-10 Natural Resource Conservation Commission who is hearing a case
7-11 pending with the commission on January 1, 1996, any equipment,
7-12 data, record, case file, facility, or other possession transferred
7-13 to the office from the commission's hearing division; and
7-14 (2) assist a hearing examiner of the Texas Natural
7-15 Resource Conservation Commission who is hearing a case pending with
7-16 the commission on January 1, 1996, in the performance of the
7-17 examiner's duties related to the case.
7-18 SECTION 10. Notwithstanding Section 2001.058, Government
7-19 Code, the changes in law made by this Act do not affect the
7-20 authority of the Texas Natural Resource Conservation Commission to
7-21 change a finding of fact or conclusion of law made by a hearing
7-22 examiner or administrative law judge or to vacate or modify an
7-23 order issued by the hearing examiner or administrative law judge in
7-24 any case pending before the Texas Natural Resource Conservation
7-25 Commission that was filed before January 1, 1996. That authority
7-26 is governed by the law governing the case that was in effect on
7-27 December 31, 1995, and that law is continued in effect for that
8-1 purpose.
8-2 SECTION 11. (a) Sections 1-6 of this Act take effect
8-3 January 1, 1996.
8-4 (b) Sections 7-10 of this Act take effect September 1, 1995.
8-5 SECTION 12. The importance of this legislation and the
8-6 crowded condition of the calendars in both houses create an
8-7 emergency and an imperative public necessity that the
8-8 constitutional rule requiring bills to be read on three several
8-9 days in each house be suspended, and this rule is hereby suspended.