1-1     By:  Duncan                                            S.B. No. 757
 1-2           (In the Senate - Filed March 1, 1999; March 2, 1999, read
 1-3     first time and referred to Committee on State Affairs;
 1-4     March 25, 1999, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 7, Nays 0; March 25, 1999,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 757                By:  Shapleigh
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the State Office of Administrative Hearings.
1-11           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12           SECTION 1.  Section 2003.021, Government Code, is amended by
1-13     amending Subsections (a) and (b) and adding Subsection (e) to read
1-14     as follows:
1-15           (a)  The State Office of Administrative Hearings is a state
1-16     agency created to serve as an independent forum for the conduct of
1-17     adjudicative hearings in the executive branch of state government.
1-18     The purpose of the office is to separate the adjudicative function
1-19     from the investigative, prosecutorial, and policymaking functions
1-20     in the executive branch in relation to hearings that the office is
1-21     authorized to conduct.
1-22           (b)  The office:
1-23                 (1)  shall conduct all administrative hearings in
1-24     contested cases under Chapter 2001 that are before a state agency
1-25     that does not employ an individual whose only duty is to preside as
1-26     a hearings officer over matters related to contested cases before
1-27     the agency;
1-28                 (2)  shall conduct administrative hearings in matters
1-29     for which the office is required to conduct the hearing under other
1-30     law;
1-31                 (3)  shall [and may] conduct alternative dispute
1-32     resolution procedures that the office is required to conduct under
1-33     law; and
1-34                 (4)  may conduct, for a fee and under a contract,
1-35     administrative hearings or alternative dispute resolution
1-36     procedures in matters voluntarily referred to the office by a
1-37     governmental entity.
1-38           (e)  The office may adopt a seal to authenticate the official
1-39     acts of the office and of its administrative law judges.
1-40           SECTION 2.  Section 2003.022, Government Code, is amended by
1-41     amending Subsection (a) and adding Subsections (c) and (d) to read
1-42     as follows:
1-43           (a)  The office is under the direction of a chief
1-44     administrative law judge appointed by the governor for a two-year
1-45     term.  The chief administrative law judge is eligible for
1-46     reappointment.
1-47           (c)  The chief administrative law judge may not engage in the
1-48     practice of law while serving as chief administrative law judge.
1-49     The chief administrative law judge serves in a full-time position.
1-50           (d)  The chief administrative law judge shall:
1-51                 (1)  supervise the office;
1-52                 (2)  protect and ensure the decisional independence of
1-53     each administrative law judge;
1-54                 (3)  adopt a code of conduct for administrative law
1-55     judges that may be modeled on the Code of Judicial Conduct; and
1-56                 (4)  monitor the quality of administrative hearings
1-57     conducted by the office.
1-58           SECTION 3.  Subchapter B, Chapter 2003, Government Code, is
1-59     amended by adding Section 2003.024 to read as follows:
1-60           Sec. 2003.024.  INTERAGENCY CONTRACTS.  (a)  If the costs to
1-61     the office of conducting hearings and alternative dispute
1-62     resolution procedures for a state agency that refers matters to the
1-63     office are not otherwise paid by appropriations to the office
1-64     during a state fiscal biennium, the office and the agency shall
 2-1     enter into an interagency contract for the biennium under which the
 2-2     referring agency pays the office the costs of conducting a hearing
 2-3     or procedure.  The costs paid under the contract must be based on
 2-4     an hourly rate that is set by the office.  The office shall set the
 2-5     hourly rate for a biennium in time for the rate to be reviewed by
 2-6     the legislature as part of the legislature's review of the office's
 2-7     legislative appropriations request for the biennium.
 2-8           (b)  If the costs to the office of conducting hearings and
 2-9     alternative dispute resolution procedures for a state agency that
2-10     refers matters to the office are otherwise paid by appropriations
2-11     to the office during a state fiscal biennium, the office and the
2-12     agency shall enter into an interagency contract for each state
2-13     fiscal year during the biennium under which the referring agency
2-14     pays the office the costs for the number of hours spent by the
2-15     office conducting hearings or alternative dispute resolution
2-16     procedures for the agency during the fiscal year that exceeds by 10
2-17     percent or more the number of hours spent by the office conducting
2-18     hearings or alternative dispute resolution procedures for the
2-19     agency during the state fiscal year that ended August 31, 1998.
2-20     The costs paid under the contract must be based on an hourly rate
2-21     that is set by the office.  The office shall set the hourly rate
2-22     for a biennium in time for the rate to be reviewed by the
2-23     legislature as part of the legislature's review of the office's
2-24     legislative appropriations request for the biennium.
2-25           (c)  Each state fiscal biennium, the office as part of its
2-26     legislative appropriation request shall file an estimate of its
2-27     hourly costs in conducting each type of hearing or dispute
2-28     resolution procedure.  The office shall estimate the hourly cost
2-29     based on the average cost per hour during the preceding state
2-30     fiscal year of:
2-31                 (1)  the salaries of its administrative law judges;
2-32                 (2)  the travel expenses, hearing costs, and telephone
2-33     charges directly related to the conduct of a hearing or procedure;
2-34     and
2-35                 (3)  the administrative costs of the office, including
2-36     docketing costs and the administrative costs of the division of the
2-37     office that conducts the hearing or procedure.
2-38           (d)  This section does not apply to hearings conducted:
2-39                 (1)  by the natural resource conservation division or
2-40     the utility division; or
2-41                 (2)  under the administrative license revocation
2-42     program.
2-43           SECTION 4.  Section 2003.041, Government Code, is amended by
2-44     adding Subsection (c) to read as follows:
2-45           (c)  An administrative law judge employed by the office is
2-46     not responsible to or subject to the supervision, direction, or
2-47     indirect influence of any person other than the chief
2-48     administrative law judge or a senior or master administrative law
2-49     judge designated by the chief administrative law judge.  In
2-50     particular, an administrative law judge employed by the office is
2-51     not responsible to or subject to the supervision, direction, or
2-52     indirect influence of an officer, employee, or agent of another
2-53     state agency who performs investigative, prosecutorial, or advisory
2-54     functions for the other agency.
2-55           SECTION 5.  Subchapter C, Chapter 2003, Government Code, is
2-56     amended by adding Sections 2003.0411 and 2003.0412 to read as
2-57     follows:
2-58           Sec. 2003.0411.  SENIOR AND MASTER ADMINISTRATIVE LAW JUDGES.
2-59     (a)  The chief administrative law judge may appoint senior or
2-60     master administrative law judges to perform duties assigned by the
2-61     chief administrative law judge.
2-62           (b)  To be appointed a senior administrative law judge, a
2-63     person must have at least six years of general legal experience,
2-64     must have at least five years of experience presiding over
2-65     administrative hearings or presiding over hearings as a judge or
2-66     master of a court, and must meet other requirements as prescribed
2-67     by the chief administrative law judge.
2-68           (c)  To be appointed a master administrative law judge, a
2-69     person must have at least 10 years of general legal experience,
 3-1     must have at least six years of experience presiding over
 3-2     administrative hearings or presiding over hearings as a judge or
 3-3     master of a court and must meet other requirements as prescribed by
 3-4     the chief administrative law judge.
 3-5           Sec. 2003.0412.  EX PARTE CONSULTATIONS.  (a)  Except as
 3-6     provided by Subsection (b), the provisions of Section 2001.061
 3-7     apply in relation to a matter before the office without regard to
 3-8     whether the matter is considered a contested case under Chapter
 3-9     2001.
3-10           (b)  The provisions of Section 2001.061 do not apply to a
3-11     matter before the office to the extent that the office is
3-12     conducting an alternative dispute resolution procedure in relation
3-13     to the matter.  The chief administrative law judge shall adopt
3-14     rules that prescribe the types of alternative dispute resolution
3-15     procedures in which ex parte consultations are prohibited and the
3-16     types of alternative dispute resolution procedures in which ex
3-17     parte consultations are allowed.  For alternative dispute
3-18     resolution procedures in which ex parte consultations are
3-19     prohibited, the chief administrative law judge in adopting rules
3-20     under this subsection shall model the prohibition after Section
3-21     2001.061 but may vary the extent of the prohibition if necessary to
3-22     take into account the nature of alternative dispute resolution
3-23     procedures.
3-24           SECTION 6.  Section 2003.045, Government Code, is amended to
3-25     read as follows:
3-26           Sec. 2003.045.  OVERSIGHT OF ADMINISTRATIVE LAW JUDGES
3-27     [DIVISION].  The chief administrative law judge may designate
3-28     senior or master administrative law judges to oversee [An
3-29     administrative division in the office oversees] the training,
3-30     evaluation, discipline, and promotion of [all] administrative law
3-31     judges employed by the office.
3-32           SECTION 7.  Subsection (a), Section 2003.0451, Government
3-33     Code, is amended to read as follows:
3-34           (a)  The office shall provide at least 30 hours of continuing
3-35     legal education and judicial training to each new administrative
3-36     law judge employed by the office who has less than three years of
3-37     presiding experience.  The office shall provide the training
3-38     required by this subsection during the administrative law judge's
3-39     first year of employment with the office.  The office may provide
3-40     the training through office personnel or through external sources,
3-41     including state and local bar associations, the Texas Center for
3-42     the Judiciary, and the National Judicial College.  The training may
3-43     include the following areas:
3-44                 (1)  conducting fair and impartial hearings;
3-45                 (2)  ethics;
3-46                 (3)  evidence;
3-47                 (4)  civil trial litigation;
3-48                 (5)  administrative law;
3-49                 (6)  managing complex litigation;
3-50                 (7)  conducting high-volume proceedings;
3-51                 (8)  judicial writing;
3-52                 (9)  effective case-flow management;
3-53                 (10)  alternative dispute resolution methods; and
3-54                 (11)  other areas that the office considers to be
3-55     relevant to the work of an administrative law judge.
3-56           SECTION 8.  Section 2003.046, Government Code, is amended to
3-57     read as follows:
3-58           Sec. 2003.046.  CENTRAL HEARINGS PANEL.  (a)  A central
3-59     hearings panel in the office is composed of administrative law
3-60     judges and [six] senior or master administrative law judges
3-61     assigned to the panel [appointed] by the chief administrative law
3-62     judge.
3-63           (b)  The [Under the direction of the] chief administrative
3-64     law judge may create teams or divisions within the central panel,
3-65     including an administrative license revocation division, according
3-66     to the subject matter or types of hearings conducted by[,] the
3-67     central panel [shall coordinate and supervise the operation of
3-68     administrative hearings conducted by the office].
3-69           SECTION 9.  Section 2003.048, Government Code, is amended to
 4-1     read as follows:
 4-2           Sec. 2003.048.  NATURAL RESOURCE CONSERVATION COMMISSION
 4-3     HEARINGS FEE.  The office shall charge the Texas Natural Resource
 4-4     Conservation Commission a fixed annual fee rather than an hourly
 4-5     rate for services rendered by the office to the commission.  The
 4-6     amount of the fee may not be less than the amount appropriated to
 4-7     the Texas Natural Resource Conservation Commission in the General
 4-8     Appropriations Act for payment to the natural resource conservation
 4-9     division to conduct commission hearings.  The amount of the fee
4-10     shall be based on the costs of conducting the hearings, the costs
4-11     of travel expenses and telephone charges directly related to the
4-12     hearings, docketing costs, and other applicable administrative
4-13     costs of the office including the administrative costs of the
4-14     natural resource conservation division.  The office and the Texas
4-15     Natural Resource Conservation Commission shall negotiate the amount
4-16     of the fixed fee biennially, subject to the approval of the
4-17     governor, to coincide with the commission's legislative
4-18     appropriations request.
4-19           SECTION 10.  Subsection (l), Section 2003.049, Government
4-20     Code, is amended to read as follows:
4-21           (l)  The office shall charge the commission a fixed annual
4-22     fee rather than an hourly rate for services rendered by the utility
4-23     division to the commission.  The amount of the fee may not be less
4-24     than the amount appropriated to the commission in the General
4-25     Appropriations Act for payment to the utility division to conduct
4-26     commission hearings.  The amount of the fee shall be based on the
4-27     costs of conducting the hearings, the costs of travel expenses and
4-28     telephone charges directly related to the hearings, docketing
4-29     costs, and other applicable administrative costs of the office
4-30     including the administrative costs of the utility division.  The
4-31     office and the commission shall negotiate the amount of the fixed
4-32     fee biennially, subject to the approval of the governor, to
4-33     coincide with the commission's legislative appropriations request.
4-34           SECTION 11.  Subchapter C, Chapter 2003, Government Code, is
4-35     amended by adding Section 2003.051 to read as follows:
4-36           Sec. 2003.051.  ROLE OF REFERRING AGENCY.  A state agency
4-37     that has referred a matter to the office in which the office will
4-38     conduct a hearing may not take any adjudicative action relating to
4-39     the matter until the office has issued its proposal for decision or
4-40     otherwise concluded its involvement in the matter.  The state
4-41     agency may exercise its advocacy rights in the matter before the
4-42     office in the same manner as any other party.
4-43           SECTION 12.  (a)  Except as provided by Subsection (b) of
4-44     this section, this Act takes effect September 1, 1999.
4-45           (b)  Section 2003.024, Government Code, as added by this Act,
4-46     and the changes in law made by this Act to Sections 2003.048 and
4-47     2003.049, Government Code, take effect September 1, 2000.
4-48           SECTION 13.  The importance of this legislation and the
4-49     crowded condition of the calendars in both houses create an
4-50     emergency and an imperative public necessity that the
4-51     constitutional rule requiring bills to be read on three several
4-52     days in each house be suspended, and this rule is hereby suspended.
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