By Puente H.B. No. 2707
75R6749 SMH-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the resolution of intergovernmental disputes arising
1-3 under the jurisdiction of the Texas Natural Resource Conservation
1-4 Commission.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 5, Water Code, is amended by adding
1-7 Subchapter J to read as follows:
1-8 SUBCHAPTER J. RESOLUTION OF INTERGOVERNMENTAL DISPUTES
1-9 Sec. 5.381. ARBITRATION REQUIRED. (a) Except as provided
1-10 by this section, a dispute between or among the following persons
1-11 regarding a matter under the commission's jurisdiction may be
1-12 resolved only through arbitration under this subchapter:
1-13 (1) a municipality;
1-14 (2) a river authority;
1-15 (3) a special district or retail public utility
1-16 governed by a board appointed by an elected official, elected board
1-17 or council, or court; or
1-18 (4) a special district regulated by the commission and
1-19 created under the Water Code or by the legislature.
1-20 (b) Persons described by Subsection (a) may resolve a
1-21 dispute by negotiation, through mediation, or by another informal
1-22 means, at any time.
1-23 (c) A dispute described by Subsection (a) to which a person
1-24 other than persons described by Subsection (a) is a party may be
2-1 arbitrated under this subchapter only with the agreement of that
2-2 party.
2-3 (d) The approval of the executive director or the public
2-4 interest counsel of the commission or a person described by
2-5 Subsection (a) is not required for a dispute to be arbitrated under
2-6 this subchapter.
2-7 (e) On application of a party to the dispute, the commission
2-8 shall order the dispute into arbitration unless a person other than
2-9 a person described by Subsection (a) has not agreed to arbitration
2-10 of the dispute.
2-11 (f) On application of a party to the dispute, the commission
2-12 shall stay the arbitration on a showing that a person other than a
2-13 person described by Subsection (a) is a party to the dispute and
2-14 has not agreed to participate in the arbitration of the dispute.
2-15 Sec. 5.382. CONTESTED CASE EXCEPTION. Chapter 2001,
2-16 Government Code, does not apply to a matter referred to arbitration
2-17 under this subchapter, except as provided by Section 5.399(b).
2-18 Sec. 5.383. ADOPTION OF ARBITRATION PROCEDURES. (a) The
2-19 commission shall adopt procedures:
2-20 (1) for the conduct of arbitration under this
2-21 subchapter; and
2-22 (2) to refer disputes under this subchapter to:
2-23 (A) an arbitrator or panel of arbitrators under
2-24 contract with the commission; or
2-25 (B) the natural resource conservation division
2-26 of the State Office of Administrative Hearings.
2-27 (b) The rules must include a procedure for obtaining from a
3-1 party other than a party described by Section 5.381(a) a binding
3-2 agreement to participate in the arbitration and abide by the terms
3-3 of an award issued under this subchapter.
3-4 Sec. 5.384. APPOINTMENT AND QUALIFICATIONS OF ARBITRATOR.
3-5 (a) The commission may appoint one arbitrator or a panel of
3-6 arbitrators to conduct the arbitration hearing.
3-7 (b) Each arbitrator must have expertise or experience in the
3-8 subject area of the dispute.
3-9 Sec. 5.385. PARTICIPATION BY EXECUTIVE DIRECTOR AND PUBLIC
3-10 INTEREST COUNSEL. The executive director and the public interest
3-11 counsel of the commission are parties to each arbitration under
3-12 this subchapter.
3-13 Sec. 5.386. NOTICE OF ARBITRATION HEARING. (a) The chief
3-14 clerk of the commission shall appoint a time and place for the
3-15 arbitration hearing and mail notice of the hearing to the parties
3-16 by registered or certified mail, return receipt requested, not
3-17 later than the sixth day before the date of the hearing.
3-18 (b) A party who appears at the hearing waives the right to
3-19 receive notice of the hearing.
3-20 (c) The arbitrator or panel may hear and determine the
3-21 dispute regardless of whether a party to the dispute who has
3-22 received notice of the hearing appears at the hearing.
3-23 Sec. 5.387. CONDUCT OF ARBITRATION HEARING. (a) Each party
3-24 to the dispute is entitled to be heard, to present evidence
3-25 material to the controversy, and to cross-examine witnesses
3-26 appearing at the hearing.
3-27 (b) If more than one arbitrator is appointed to the case:
4-1 (1) the hearing shall be conducted by all of the
4-2 arbitrators except as provided by Subdivision (3);
4-3 (2) a majority of the arbitrators conducting the
4-4 hearing is required to determine a question, render a final award,
4-5 or exercise other authority, except as otherwise provided by this
4-6 subchapter; and
4-7 (3) the remaining arbitrator or arbitrators may
4-8 continue with the hearing and determine the dispute if, during the
4-9 course of the hearing, an arbitrator ceases to act.
4-10 (c) The arbitrator or panel may adjourn the hearing from
4-11 time to time and place to place as necessary.
4-12 (d) The commission on application may direct the arbitrator
4-13 or panel to proceed promptly with the hearing and determination of
4-14 the dispute.
4-15 Sec. 5.388. REPRESENTATION BY ATTORNEYS. A party to the
4-16 dispute:
4-17 (1) is entitled to be represented by an attorney at a
4-18 proceeding or hearing under this subchapter; and
4-19 (2) may not waive that right.
4-20 Sec. 5.389. OATH. An arbitrator, including one arbitrator
4-21 authorized by a panel, may administer an oath to a witness in the
4-22 same manner as a district judge in a civil action and may require
4-23 testimony to be given under oath.
4-24 Sec. 5.390. DEPOSITION. (a) An arbitrator, including one
4-25 arbitrator authorized by a panel, may authorize a deposition of a
4-26 witness for use as evidence if the witness:
4-27 (1) cannot be required by subpoena to appear before
5-1 the arbitrator; or
5-2 (2) is unable to attend the arbitration hearing.
5-3 (b) An arbitrator, including one arbitrator authorized by a
5-4 panel, may authorize a deposition of an adverse witness for
5-5 discovery or evidentiary purposes.
5-6 (c) A deposition must be taken in the manner provided by law
5-7 for a deposition in a civil action in district court.
5-8 Sec. 5.391. SUBPOENA. (a) An arbitrator, including one
5-9 arbitrator authorized by a panel, may issue a subpoena to compel:
5-10 (1) the attendance of a witness at a deposition or at
5-11 the hearing; and
5-12 (2) the production of books, records, documents, and
5-13 other evidence.
5-14 (b) The law governing service of and compliance with a
5-15 subpoena issued in a civil action in district court applies to a
5-16 subpoena issued under this subchapter.
5-17 Sec. 5.392. WITNESS FEES. A witness who attends an
5-18 arbitration hearing or deposition under this subchapter is entitled
5-19 to the same fee as a witness in a civil action in district court.
5-20 Sec. 5.393. AWARDS BY ARBITRATOR. (a) Not later than the
5-21 90th day after the date the hearing is concluded, the arbitrator or
5-22 panel shall make an award.
5-23 (b) The award must be:
5-24 (1) in writing; and
5-25 (2) signed by the arbitrator or panel.
5-26 (c) The arbitrator or panel shall deliver a copy of the
5-27 award to the chief clerk of the commission and to each party to the
6-1 dispute personally or by registered or certified mail.
6-2 Sec. 5.394. AWARD OF FEES AND EXPENSES. The award may
6-3 include an order to pay:
6-4 (1) the fees and expenses of the arbitrator or panel;
6-5 and
6-6 (2) other expenses incurred in the conduct of the
6-7 arbitration.
6-8 Sec. 5.395. ARBITRATION AWARD CONSIDERED COMMISSION ORDER.
6-9 When a party to a dispute arbitrated under this subchapter files
6-10 the award with the chief clerk of the commission, the award is
6-11 considered to be a final order of the commission for purposes of
6-12 appeal or enforcement.
6-13 Sec. 5.396. VACATION OF AWARD. (a) On application of a
6-14 party to the dispute, the commission shall vacate an award if:
6-15 (1) the award was procured by corruption, fraud, or
6-16 other undue means;
6-17 (2) the rights of a party to the dispute were
6-18 prejudiced by an arbitrator's partiality, corruption, misconduct,
6-19 or wilful misbehavior;
6-20 (3) an arbitrator exceeded the arbitrator's powers;
6-21 (4) an arbitrator refused to postpone the arbitration
6-22 hearing on a showing of sufficient cause for the postponement;
6-23 (5) an arbitrator refused to hear evidence material to
6-24 the dispute;
6-25 (6) an arbitrator conducted the arbitration hearing in
6-26 a manner that substantially prejudiced the rights of a party to the
6-27 dispute; or
7-1 (7) the award results in a condition, action,
7-2 omission, or permit that violates commission rules or state law.
7-3 (b) A party to the dispute must file an application to
7-4 vacate an award under this section not later than the 30th day
7-5 after the date:
7-6 (1) a copy of the award is delivered to the applicant;
7-7 or
7-8 (2) the ground of the application is known or should
7-9 have been known if the ground of the application is the ground
7-10 provided by Subsection (a)(1).
7-11 (c) If the commission vacates an award, the commission may
7-12 order a rehearing. A rehearing of an award under Subsection (a)(1)
7-13 or (2) must be before a new arbitrator or panel. A rehearing of an
7-14 award under another subsection may be before the same arbitrator or
7-15 panel or a new arbitrator or panel.
7-16 (d) If the application to vacate is denied and a motion to
7-17 modify or correct the award is not pending, the commission by order
7-18 shall confirm the award.
7-19 Sec. 5.397. MODIFICATION OR CORRECTION OF AWARD. (a) On
7-20 application filed with the chief clerk of the commission not later
7-21 than the 30th day after the date the award is issued, the
7-22 commission shall modify or correct the award if:
7-23 (1) the award contains a mathematical error or an
7-24 error in the description of a person, thing, or property;
7-25 (2) the arbitrator or panel made an award on a matter
7-26 not submitted to the arbitrator or panel and the award may be
7-27 corrected without affecting the merits of the decision on the
8-1 issues submitted; or
8-2 (3) the award is imperfect in a matter of form that
8-3 does not affect the merits of the controversy.
8-4 (b) If the application is approved, the commission by order
8-5 shall modify or correct the award so as to give effect to its
8-6 intent and shall confirm the award as modified or corrected. If
8-7 the application is denied, the commission shall confirm the award
8-8 as made.
8-9 (c) An application to modify or correct an award may be
8-10 combined in the alternative with an application to vacate the
8-11 award.
8-12 (d) If the defect in the award cannot be remedied by
8-13 modifying or correcting the award, the commission may vacate the
8-14 award on the commission's own motion.
8-15 Sec. 5.398. ENFORCEMENT OF ORDER CONFIRMING, MODIFYING, OR
8-16 CORRECTING AWARD. A commission order confirming, modifying, or
8-17 correcting an award is enforceable in the same manner as other
8-18 commission orders.
8-19 Sec. 5.399. APPEALS. (a) An appeal may be taken from a
8-20 commission order:
8-21 (1) approving or denying an application to refer a
8-22 dispute to arbitration;
8-23 (2) staying arbitration of a dispute;
8-24 (3) confirming or denying confirmation of an award;
8-25 (4) vacating an award without ordering a rehearing; or
8-26 (5) modifying or correcting an award.
8-27 (b) Chapter 2001, Government Code, applies to an appeal
9-1 under this section in the same manner as that chapter applies to
9-2 the appeal of other commission orders.
9-3 (c) The executive director or the public interest counsel of
9-4 the commission may not appeal a commission order.
9-5 SECTION 2. This Act does not apply to an administrative or
9-6 judicial proceeding that is pending on the effective date of this
9-7 Act.
9-8 SECTION 3. The importance of this legislation and the
9-9 crowded condition of the calendars in both houses create an
9-10 emergency and an imperative public necessity that the
9-11 constitutional rule requiring bills to be read on three several
9-12 days in each house be suspended, and this rule is hereby suspended,
9-13 and that this Act take effect and be in force from and after its
9-14 passage, and it is so enacted.