By: Duncan, Shapiro S.B. No. 757
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the State Office of Administrative Hearings.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Section 2003.021, Government Code, is amended by
1-4 amending Subsections (a) and (b) and adding Subsection (e) to read
1-5 as follows:
1-6 (a) The State Office of Administrative Hearings is a state
1-7 agency created to serve as an independent forum for the conduct of
1-8 adjudicative hearings in the executive branch of state government.
1-9 The purpose of the office is to separate the adjudicative function
1-10 from the investigative, prosecutorial, and policymaking functions
1-11 in the executive branch in relation to hearings that the office is
1-12 authorized to conduct.
1-13 (b) The office:
1-14 (1) shall conduct all administrative hearings in
1-15 contested cases under Chapter 2001 that are before a state agency
1-16 that does not employ an individual whose only duty is to preside as
1-17 a hearings officer over matters related to contested cases before
1-18 the agency;
1-19 (2) shall conduct administrative hearings in matters
1-20 for which the office is required to conduct the hearing under other
1-21 law;
1-22 (3) shall [and may] conduct alternative dispute
1-23 resolution procedures that the office is required to conduct under
1-24 law; and
2-1 (4) may conduct, for a fee and under a contract,
2-2 administrative hearings or alternative dispute resolution
2-3 procedures in matters voluntarily referred to the office by a
2-4 governmental entity.
2-5 (e) The office may adopt a seal to authenticate the official
2-6 acts of the office and of its administrative law judges.
2-7 SECTION 2. Section 2003.022, Government Code, is amended by
2-8 amending Subsection (a) and adding Subsections (c) and (d) to read
2-9 as follows:
2-10 (a) The office is under the direction of a chief
2-11 administrative law judge appointed by the governor for a two-year
2-12 term. The chief administrative law judge is eligible for
2-13 reappointment.
2-14 (c) The chief administrative law judge may not engage in the
2-15 practice of law while serving as chief administrative law judge.
2-16 The chief administrative law judge serves in a full-time position.
2-17 (d) The chief administrative law judge shall:
2-18 (1) supervise the office;
2-19 (2) protect and ensure the decisional independence of
2-20 each administrative law judge;
2-21 (3) adopt a code of conduct for administrative law
2-22 judges that may be modeled on the Code of Judicial Conduct; and
2-23 (4) monitor the quality of administrative hearings
2-24 conducted by the office.
2-25 SECTION 3. Subchapter B, Chapter 2003, Government Code, is
2-26 amended by adding Section 2003.024 to read as follows:
3-1 Sec. 2003.024. INTERAGENCY CONTRACTS. (a) If the costs to
3-2 the office of conducting hearings and alternative dispute
3-3 resolution procedures for a state agency that refers matters to the
3-4 office are not otherwise paid by appropriations to the office
3-5 during a state fiscal biennium, the office and the agency shall
3-6 enter into an interagency contract for the biennium under which the
3-7 referring agency pays the office the costs of conducting a hearing
3-8 or procedure. The costs paid under the contract must be based on
3-9 an hourly rate that is set by the office. The office shall set the
3-10 hourly rate for a biennium in time for the rate to be reviewed by
3-11 the legislature as part of the legislature's review of the office's
3-12 legislative appropriations request for the biennium.
3-13 (b) If the costs to the office of conducting hearings and
3-14 alternative dispute resolution procedures for a state agency that
3-15 refers matters to the office are otherwise paid by appropriations
3-16 to the office during a state fiscal biennium, the office and the
3-17 agency shall enter into an interagency contract for each state
3-18 fiscal year during the biennium under which the referring agency
3-19 pays the office the costs for the number of hours spent by the
3-20 office conducting hearings or alternative dispute resolution
3-21 procedures for the agency during the fiscal year that exceeds by 10
3-22 percent or more the number of hours spent by the office conducting
3-23 hearings or alternative dispute resolution procedures for the
3-24 agency during the state fiscal year that ended August 31, 1998.
3-25 The costs paid under the contract must be based on an hourly rate
3-26 that is set by the office. The office shall set the hourly rate
4-1 for a biennium in time for the rate to be reviewed by the
4-2 legislature as part of the legislature's review of the office's
4-3 legislative appropriations request for the biennium.
4-4 (c) Each state fiscal biennium, the office as part of its
4-5 legislative appropriation request shall file an estimate of its
4-6 hourly costs in conducting each type of hearing or dispute
4-7 resolution procedure. The office shall estimate the hourly cost
4-8 based on the average cost per hour during the preceding state
4-9 fiscal year of:
4-10 (1) the salaries of its administrative law judges;
4-11 (2) the travel expenses, hearing costs, and telephone
4-12 charges directly related to the conduct of a hearing or procedure;
4-13 and
4-14 (3) the administrative costs of the office, including
4-15 docketing costs and the administrative costs of the division of the
4-16 office that conducts the hearing or procedure.
4-17 (d) This section does not apply to hearings conducted:
4-18 (1) by the natural resource conservation division or
4-19 the utility division; or
4-20 (2) under the administrative license revocation
4-21 program.
4-22 SECTION 4. Section 2003.041, Government Code, is amended by
4-23 adding Subsection (c) to read as follows:
4-24 (c) An administrative law judge employed by the office is
4-25 not responsible to or subject to the supervision, direction, or
4-26 indirect influence of any person other than the chief
5-1 administrative law judge or a senior or master administrative law
5-2 judge designated by the chief administrative law judge. In
5-3 particular, an administrative law judge employed by the office is
5-4 not responsible to or subject to the supervision, direction, or
5-5 indirect influence of an officer, employee, or agent of another
5-6 state agency who performs investigative, prosecutorial, or advisory
5-7 functions for the other agency.
5-8 SECTION 5. Subchapter C, Chapter 2003, Government Code, is
5-9 amended by adding Sections 2003.0411 and 2003.0412 to read as
5-10 follows:
5-11 Sec. 2003.0411. SENIOR AND MASTER ADMINISTRATIVE LAW JUDGES.
5-12 (a) The chief administrative law judge may appoint senior or
5-13 master administrative law judges to perform duties assigned by the
5-14 chief administrative law judge.
5-15 (b) To be appointed a senior administrative law judge, a
5-16 person must have at least six years of general legal experience,
5-17 must have at least five years of experience presiding over
5-18 administrative hearings or presiding over hearings as a judge or
5-19 master of a court, and must meet other requirements as prescribed
5-20 by the chief administrative law judge.
5-21 (c) To be appointed a master administrative law judge, a
5-22 person must have at least 10 years of general legal experience,
5-23 must have at least six years of experience presiding over
5-24 administrative hearings or presiding over hearings as a judge or
5-25 master of a court, and must meet other requirements as prescribed
5-26 by the chief administrative law judge.
6-1 Sec. 2003.0412. EX PARTE CONSULTATIONS. (a) Except as
6-2 provided by Subsection (b), the provisions of Section 2001.061
6-3 apply in relation to a matter before the office without regard to
6-4 whether the matter is considered a contested case under Chapter
6-5 2001.
6-6 (b) The provisions of Section 2001.061 do not apply to a
6-7 matter before the office to the extent that the office is
6-8 conducting an alternative dispute resolution procedure in relation
6-9 to the matter. The chief administrative law judge shall adopt
6-10 rules that prescribe the types of alternative dispute resolution
6-11 procedures in which ex parte consultations are prohibited and the
6-12 types of alternative dispute resolution procedures in which ex
6-13 parte consultations are allowed. For alternative dispute
6-14 resolution procedures in which ex parte consultations are
6-15 prohibited, the chief administrative law judge in adopting rules
6-16 under this subsection shall model the prohibition after Section
6-17 2001.061 but may vary the extent of the prohibition if necessary to
6-18 take into account the nature of alternative dispute resolution
6-19 procedures.
6-20 SECTION 6. Section 2003.045, Government Code, is amended to
6-21 read as follows:
6-22 Sec. 2003.045. OVERSIGHT OF ADMINISTRATIVE LAW JUDGES
6-23 [DIVISION]. The chief administrative law judge may designate
6-24 senior or master administrative law judges to oversee [An
6-25 administrative division in the office oversees] the training,
6-26 evaluation, discipline, and promotion of [all] administrative law
7-1 judges employed by the office.
7-2 SECTION 7. Subsection (a), Section 2003.0451, Government
7-3 Code, is amended to read as follows:
7-4 (a) The office shall provide at least 30 hours of continuing
7-5 legal education and judicial training to each new administrative
7-6 law judge employed by the office who has less than three years of
7-7 presiding experience. The office shall provide the training
7-8 required by this subsection during the administrative law judge's
7-9 first year of employment with the office. The office may provide
7-10 the training through office personnel or through external sources,
7-11 including state and local bar associations, the Texas Center for
7-12 the Judiciary, and the National Judicial College. The training may
7-13 include the following areas:
7-14 (1) conducting fair and impartial hearings;
7-15 (2) ethics;
7-16 (3) evidence;
7-17 (4) civil trial litigation;
7-18 (5) administrative law;
7-19 (6) managing complex litigation;
7-20 (7) conducting high-volume proceedings;
7-21 (8) judicial writing;
7-22 (9) effective case-flow management;
7-23 (10) alternative dispute resolution methods; and
7-24 (11) other areas that the office considers to be
7-25 relevant to the work of an administrative law judge.
7-26 SECTION 8. Section 2003.046, Government Code, is amended to
8-1 read as follows:
8-2 Sec. 2003.046. CENTRAL HEARINGS PANEL. (a) A central
8-3 hearings panel in the office is composed of administrative law
8-4 judges and [six] senior or master administrative law judges
8-5 assigned to the panel [appointed] by the chief administrative law
8-6 judge.
8-7 (b) The [Under the direction of the] chief administrative
8-8 law judge may create teams or divisions within the central panel,
8-9 including an administrative license revocation division, according
8-10 to the subject matter or types of hearings conducted by[,] the
8-11 central panel [shall coordinate and supervise the operation of
8-12 administrative hearings conducted by the office].
8-13 SECTION 9. Section 2003.048, Government Code, is amended to
8-14 read as follows:
8-15 Sec. 2003.048. NATURAL RESOURCE CONSERVATION COMMISSION
8-16 HEARINGS FEE. The office shall charge the Texas Natural Resource
8-17 Conservation Commission a fixed annual fee rather than an hourly
8-18 rate for services rendered by the office to the commission. The
8-19 amount of the fee may not be less than the amount appropriated to
8-20 the Texas Natural Resource Conservation Commission in the General
8-21 Appropriations Act for payment to the natural resource conservation
8-22 division to conduct commission hearings. The amount of the fee
8-23 shall be based on the costs of conducting the hearings, the costs
8-24 of travel expenses and telephone charges directly related to the
8-25 hearings, docketing costs, and other applicable administrative
8-26 costs of the office including the administrative costs of the
9-1 natural resource conservation division. The office and the Texas
9-2 Natural Resource Conservation Commission shall negotiate the amount
9-3 of the fixed fee biennially, subject to the approval of the
9-4 governor, to coincide with the commission's legislative
9-5 appropriations request.
9-6 SECTION 10. Subsection (l), Section 2003.049, Government
9-7 Code, is amended to read as follows:
9-8 (l) The office shall charge the commission a fixed annual
9-9 fee rather than an hourly rate for services rendered by the utility
9-10 division to the commission. The amount of the fee may not be less
9-11 than the amount appropriated to the commission in the General
9-12 Appropriations Act for payment to the utility division to conduct
9-13 commission hearings. The amount of the fee shall be based on the
9-14 costs of conducting the hearings, the costs of travel expenses and
9-15 telephone charges directly related to the hearings, docketing
9-16 costs, and other applicable administrative costs of the office
9-17 including the administrative costs of the utility division. The
9-18 office and the commission shall negotiate the amount of the fixed
9-19 fee biennially, subject to the approval of the governor, to
9-20 coincide with the commission's legislative appropriations request.
9-21 SECTION 11. Subchapter C, Chapter 2003, Government Code, is
9-22 amended by adding Section 2003.051 to read as follows:
9-23 Sec. 2003.051. ROLE OF REFERRING AGENCY. Except in
9-24 connection with interim appeals of orders or questions certified to
9-25 an agency by an administrative law judge, as permitted by law, a
9-26 state agency that has referred a matter to the office in which the
10-1 office will conduct a hearing may not take any adjudicative action
10-2 relating to the matter until the office has issued its proposal for
10-3 decision or otherwise concluded its involvement in the matter. The
10-4 state agency may exercise its advocacy rights in the matter before
10-5 the office in the same manner as any other party.
10-6 SECTION 12. (a) Except as provided by Subsection (b) of
10-7 this section, this Act takes effect September 1, 1999.
10-8 (b) Section 2003.024, Government Code, as added by this Act,
10-9 and the changes in law made by this Act to Sections 2003.048 and
10-10 2003.049, Government Code, take effect September 1, 2000.
10-11 SECTION 13. The importance of this legislation and the
10-12 crowded condition of the calendars in both houses create an
10-13 emergency and an imperative public necessity that the
10-14 constitutional rule requiring bills to be read on three several
10-15 days in each house be suspended, and this rule is hereby suspended.