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.
4-53 * * * * *