By Palmer H.B. No. 1643
75R4719 JRD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to judicial review of state agency orders and decisions
1-3 and of the validity of agency rules under the Administrative
1-4 Procedure Act.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Title 2, Government Code, is amended by adding
1-7 Subtitle I to read as follows:
1-8 SUBTITLE I. JUDICIAL REVIEW OF STATE AGENCY ACTIONS
1-9 CHAPTER 101. STATUTORY COURT OF ADMINISTRATIVE REVIEW
1-10 SUBCHAPTER A. GENERAL PROVISIONS
1-11 Sec. 101.001. COURT OF ADMINISTRATIVE REVIEW. The Court of
1-12 Administrative Review is established as a statutory court in the
1-13 judicial branch of state government under Section 1, Article V,
1-14 Texas Constitution.
1-15 Sec. 101.002. COMPOSITION; APPOINTMENT. The court is
1-16 composed of five judges appointed by the governor with the advice
1-17 and consent of the senate.
1-18 Sec. 101.003. TERMS OF OFFICE. Judges of the court serve
1-19 staggered two-year terms of office expiring January 1.
1-20 Sec. 101.004. PRESIDING JUDGE. The governor shall designate
1-21 one member of the court as the presiding judge to serve in that
1-22 capacity for a two-year term expiring on the date the judge's term
1-23 as a judge expires.
1-24 Sec. 101.005. STATUS OF COURT; APPLICABILITY OF OTHER LAW.
2-1 The court is a trial court but Chapter 23 does not apply to the
2-2 court.
2-3 Sec. 101.006. LOCATION OF COURT. (a) The court sits in the
2-4 city of Austin.
2-5 (b) The General Services Commission shall provide office
2-6 space for the court.
2-7 Sec. 101.007. TERM OF COURT. The court's term begins and
2-8 ends with each calendar year.
2-9 Sec. 101.008. PERSONNEL. The court may employ clerks, court
2-10 reporters, and other personnel necessary for the business of the
2-11 court.
2-12 Sec. 101.009. COMPENSATION. (a) The legislature shall
2-13 determine the salaries of the judges and of the clerks and other
2-14 officers and employees of the court in its appropriations acts for
2-15 the support of the judiciary.
2-16 (b) Judges of the court are members of the Judicial
2-17 Retirement System of Texas Plan Two. Other court personnel are
2-18 state employee members of the Employees Retirement System of Texas.
2-19 (Sections 101.010-101.050 reserved for expansion
2-20 SUBCHAPTER B. JURISDICTION AND PROCEDURE
2-21 Sec. 101.051. JURISDICTION. (a) The court has jurisdiction
2-22 over the judicial review of each state agency contested case for
2-23 which a petition for judicial review is filed under Subchapter G,
2-24 Chapter 2001, and that is subject to judicial review in accordance
2-25 with Sections 2001.174 and 2001.175.
2-26 (b) The court has jurisdiction over all declaratory
2-27 judgments to determine the validity or applicability of a state
3-1 agency rule that are brought under Section 2001.038.
3-2 Sec. 101.052. POWERS. In addition to its powers under
3-3 Chapters 21 and 2001, the court may:
3-4 (1) ascertain, on affidavit or otherwise as the court
3-5 may determine, the matters of fact that are necessary to the proper
3-6 exercise of its jurisdiction; and
3-7 (2) in a proper case, enjoin or modify the enforcement
3-8 of a state agency's final order or decision in a case that is
3-9 otherwise before the court for judicial review, pending the court's
3-10 final judgment in the case.
3-11 Sec. 101.053. RULES OF PROCEDURE; ASSIGNMENT OF CASES. (a)
3-12 The court may adopt rules of procedure that are consistent with the
3-13 Texas Rules of Civil Procedure and applicable law. The court's
3-14 rules shall provide for circumstances under which a case may be
3-15 heard on rehearing by the court sitting en banc.
3-16 (b) Subject to rules adopted by the court, the presiding
3-17 judge shall assign a case to be heard either by an individual judge
3-18 or by a panel of three judges. The decision to assign a case to an
3-19 individual judge or to a panel shall be based on the presiding
3-20 judge's determination of the size and complexity of the case.
3-21 Sec. 101.054. APPEAL FROM JUDGMENT OF COURT. (a) An appeal
3-22 from a judgment of the court in a case in which the court is
3-23 reviewing a contested case under Chapter 2001 is direct to the
3-24 supreme court. The supreme court shall prescribe the necessary
3-25 rules of procedure to be followed in perfecting the appeal.
3-26 (b) An appeal from a declaratory judgment of the court in a
3-27 case in which the court is determining the validity or
4-1 applicability of a state agency rule under Section 2001.038 is to
4-2 the Court of Appeals for the Third Court of Appeals District in
4-3 Austin in the manner provided for the appeal of a declaratory
4-4 judgment from a trial court generally.
4-5 SECTION 2. Section 2001.038(b), Government Code, is amended
4-6 to read as follows:
4-7 (b) The action may be brought only in the Court of
4-8 Administrative Review [a Travis County district court].
4-9 SECTION 3. Section 2001.176, Government Code, is amended by
4-10 amending Subsection (b) and adding Subsection (c) to read as
4-11 follows:
4-12 (b) Unless otherwise provided by statute:
4-13 (1) the petition must be filed:
4-14 (A) in a Travis County district court if the
4-15 manner of review authorized by law for the decision in the
4-16 contested case is by trial de novo; or
4-17 (B) in the Court of Administrative Review if the
4-18 manner of review authorized by law for the decision in the
4-19 contested case is other than by trial de novo;
4-20 (2) a copy of the petition must be served on the state
4-21 agency and each party of record in the proceedings before the
4-22 agency; and
4-23 (3) the filing of the petition vacates a state agency
4-24 decision for which trial de novo is the manner of review authorized
4-25 by law but does not affect the enforcement of an agency decision
4-26 for which another manner of review is authorized.
4-27 (c) Another statute that provides that a Travis County
5-1 district court is the reviewing court for a decision in a contested
5-2 case for which the manner of review authorized by law is other than
5-3 by trial de novo is considered to provide that the Court of
5-4 Administrative Review is the reviewing court for the decision.
5-5 SECTION 4. Subchapter G, Chapter 2001, Government Code, is
5-6 amended by adding Section 2001.1761 to read as follows:
5-7 Sec. 2001.1761. TRANSFER IF STATUTE UNCONSTITUTIONALLY
5-8 AUTHORIZES TRIAL DE NOVO REVIEW. If a statute authorizes trial de
5-9 novo review of a contested case in circumstances under which the
5-10 Texas Constitution does not permit trial de novo review and the
5-11 petitioner initiates judicial review in the contested case by
5-12 filing a petition in Travis County district court in accordance
5-13 with Section 2001.176, the trial court or an appellate court on the
5-14 motion of a party or on the court's own motion shall transfer the
5-15 case to the Court of Administrative Review. The Court of
5-16 Administrative Review shall determine the case as if it had been
5-17 filed with that court.
5-18 SECTION 5. (a) Except as provided by Subsection (b) of this
5-19 section, this Act takes effect January 1, 1998, and applies only to
5-20 an action brought under Section 2001.038, Government Code, or an
5-21 action for which a petition is filed under Section 2001.176,
5-22 Government Code, on or after that date. An action brought under
5-23 Section 2001.038, Government Code, or an action for which a
5-24 petition is filed under Section 2001.176, Government Code, before
5-25 that date is governed by the law in effect at the time the action
5-26 is brought or the petition is filed, and the former law is
5-27 continued in effect for this purpose.
6-1 (b) This Act takes effect September 1, 1997, for the limited
6-2 purpose of allowing the governor to make the initial appointments
6-3 to the Court of Administrative Review so that the court may adopt
6-4 and publicize interim rules, hire staff, and take other action
6-5 necessary for it to begin its business on January 1, 1998. A judge
6-6 may qualify for office and a judge or employee of the court may
6-7 begin administrative duties and receive compensation before January
6-8 1, 1998. The governor shall make initial appointments to the court
6-9 in accordance with Chapter 101, Government Code, as added by this
6-10 Act. The governor shall appoint three judges for terms expiring
6-11 January 1, 1999, and two judges for terms expiring January 1, 2000.
6-12 The governor shall appoint one of the five judges as the presiding
6-13 judge.
6-14 SECTION 6. The importance of this legislation and the
6-15 crowded condition of the calendars in both houses create an
6-16 emergency and an imperative public necessity that the
6-17 constitutional rule requiring bills to be read on three several
6-18 days in each house be suspended, and this rule is hereby suspended.