By Palmer H.B. No. 1600
76R2414 JRD-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the judicial review of state agency orders and
1-3 decisions under the Administrative Procedure Act and to actions for
1-4 a declaratory judgment that challenge the validity or applicability
1-5 of a state agency rule under the Administrative Procedure Act.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Title 2, Government Code, is amended by adding
1-8 Subtitle I to read as follows:
1-9 SUBTITLE I. JUDICIAL REVIEW OF CERTAIN STATE AGENCY RULES
1-10 AND DECISIONS
1-11 CHAPTER 101. STATUTORY COURT OF ADMINISTRATIVE APPEALS
1-12 SUBCHAPTER A. GENERAL PROVISIONS
1-13 Sec. 101.001. COURT OF ADMINISTRATIVE APPEALS. The Court of
1-14 Administrative Appeals is established as a statutory court in the
1-15 judicial branch of state government under Section 1, Article V,
1-16 Texas Constitution.
1-17 Sec. 101.002. COMPOSITION; APPOINTMENT. (a) The court is
1-18 composed of not more than five judges appointed by the governor
1-19 with the advice and consent of the senate.
1-20 (b) Each judge appointed to the court must:
1-21 (1) be a senior judge under Section 75.001 at the time
1-22 of the appointment; and
1-23 (2) have demonstrated competence in administrative
1-24 law.
2-1 Sec. 101.003. TERMS OF OFFICE. Judges of the court serve
2-2 two-year terms of office expiring January 1 of each odd-numbered
2-3 year.
2-4 Sec. 101.004. PRESIDING JUDGE. The governor shall designate
2-5 one member of the court to serve as the presiding judge of the
2-6 court until the judge's term expires.
2-7 Sec. 101.005. LOCATION OF COURT. (a) The court shall
2-8 conduct its sessions in the city of Austin.
2-9 (b) The General Services Commission shall provide furniture,
2-10 equipment, and office space for the court.
2-11 (c) The court shall use the courtroom of the Court of
2-12 Appeals for the Third Supreme Judicial District at times that are
2-13 convenient to the court of appeals.
2-14 Sec. 101.006. TERM OF COURT. The court's term begins and
2-15 ends with each calendar year.
2-16 Sec. 101.007. PERSONNEL. The clerk and clerical staff of
2-17 the Court of Appeals for the Third Supreme Judicial District shall
2-18 also serve as the clerk and clerical staff of the court.
2-19 Sec. 101.008. COMPENSATION. (a) For each day during which
2-20 the judge is actively performing duties as a judge of the court, a
2-21 judge of the court is entitled to receive as compensation the
2-22 amount that a retired justice or judge would receive under Section
2-23 74.003 for a day of active service on assignment to the Court of
2-24 Appeals for the Third Supreme Judicial District.
2-25 (b) The state shall pay the compensation on certificates of
2-26 approval by the presiding judge of the court from amounts
2-27 appropriated for that purpose from the general revenue fund.
3-1 (Sections 101.009-101.050 reserved for expansion)
3-2 SUBCHAPTER B. JURISDICTION AND PROCEDURE
3-3 Sec. 101.051. JURISDICTION. (a) The court has jurisdiction
3-4 to hear and determine each suit for the judicial review of a state
3-5 agency decision in a contested case that is subject to judicial
3-6 review under the substantial evidence rule or under an undefined
3-7 scope of review in accordance with Sections 2001.174 and 2001.175.
3-8 (b) The court has jurisdiction to hear and determine by
3-9 declaratory judgment the validity or applicability of a state
3-10 agency rule in all actions that are brought under Section 2001.038.
3-11 Sec. 101.052. POWERS. In addition to its powers under
3-12 Chapter 2001, the court may:
3-13 (1) determine, by affidavit or otherwise as the court
3-14 may direct, any necessary matters of fact; and
3-15 (2) issue such writs as are necessary to the proper
3-16 exercise or enforcement of its jurisdiction.
3-17 Sec. 101.053. RULES OF PROCEDURE; ASSIGNMENT OF CASES. (a)
3-18 The court may adopt rules of procedure that are consistent with the
3-19 Texas Rules of Appellate Procedure.
3-20 (b) The court may in its discretion hear and determine a
3-21 matter en banc or provide that the matter will be heard and
3-22 determined by a panel of judges or by an individual judge.
3-23 Sec. 101.054. APPEAL FROM JUDGMENT OF COURT. (a) An appeal
3-24 from a judgment of the court is directly to the supreme court. The
3-25 supreme court has discretion to exercise or to refuse to exercise
3-26 its jurisdiction to hear the appeal.
3-27 (b) If the Texas Rules of Appellate Procedure do not
4-1 specifically prescribe the procedures for an appeal under this
4-2 section, a party appealing a judgment of the court shall petition
4-3 the supreme court for review in the same manner that a party in
4-4 other civil cases petitions the supreme court to review a judgment
4-5 of a court of appeals.
4-6 SECTION 2. Section 2001.038(b), Government Code, is amended
4-7 to read as follows:
4-8 (b) The action may be brought only in the Court of
4-9 Administrative Appeals [a Travis County district court].
4-10 SECTION 3. Section 2001.176, Government Code, is amended by
4-11 amending Subsection (b) and adding Subsection (c) to read as
4-12 follows:
4-13 (b) Unless otherwise provided by statute:
4-14 (1) the petition must be filed:
4-15 (A) in a Travis County district court if the
4-16 manner of review authorized by law for the decision in the
4-17 contested case is by trial de novo; or
4-18 (B) in the Court of Administrative Appeals if
4-19 the manner of review authorized by law for the decision in the
4-20 contested case is other than by trial de novo;
4-21 (2) a copy of the petition must be served on the state
4-22 agency and each party of record in the proceedings before the
4-23 agency; and
4-24 (3) the filing of the petition vacates a state agency
4-25 decision for which trial de novo is the manner of review authorized
4-26 by law but does not affect the enforcement of an agency decision
4-27 for which another manner of review is authorized.
5-1 (c) Another statute that provides that a Travis County
5-2 district court is the reviewing court for a decision in a contested
5-3 case for which the manner of review authorized by law is other than
5-4 by trial de novo is considered to provide that the Court of
5-5 Administrative Appeals is the reviewing court for the decision.
5-6 SECTION 4. Subchapter G, Chapter 2001, Government Code, is
5-7 amended by adding Section 2001.1761 to read as follows:
5-8 Sec. 2001.1761. TRANSFER IF STATUTE UNCONSTITUTIONALLY
5-9 AUTHORIZES TRIAL DE NOVO REVIEW. (a) This section applies only if
5-10 a statute authorizes trial de novo review of a contested case and
5-11 the petitioner accordingly initiates judicial review in the
5-12 contested case by filing a petition in Travis County district court
5-13 as prescribed by Section 2001.176.
5-14 (b) If a reviewing court holds that the Texas Constitution
5-15 does not permit trial de novo review of the contested case, the
5-16 reviewing court on its own motion or on the motion of a party shall
5-17 transfer the cause to the Court of Administrative Appeals. After
5-18 allowing a reasonable time for the preparation and filing of the
5-19 state agency record, the Court of Administrative Appeals shall hear
5-20 and determine the cause as if it had been filed with that court.
5-21 SECTION 5. (a) Except as provided by Subsection (b) of this
5-22 section, the change in law made by this Act applies only to an
5-23 action brought under Section 2001.038, Government Code, or an
5-24 action for which a petition is filed under Section 2001.176,
5-25 Government Code, on or after January 1, 2000. An action brought
5-26 under Section 2001.038, Government Code, or an action for which a
5-27 petition is filed under Section 2001.176, Government Code, before
6-1 that date is governed by the law in effect immediately preceding
6-2 September 1, 1999, and the former law is continued in effect for
6-3 that purpose.
6-4 (b) The governor shall make the initial appointment of
6-5 judges to the Court of Administrative Appeals for terms expiring
6-6 January 1, 2001, so that the appointed judges may adopt rules and
6-7 organize the court before January 1, 2000.
6-8 SECTION 6. This Act takes effect September 1, 1999.
6-9 SECTION 7. The importance of this legislation and the
6-10 crowded condition of the calendars in both houses create an
6-11 emergency and an imperative public necessity that the
6-12 constitutional rule requiring bills to be read on three several
6-13 days in each house be suspended, and this rule is hereby suspended.