SENATE CONCURRENT RESOLUTION
1-1 WHEREAS, Gibson Recycling, Inc., alleges that Gibson
1-2 Recycling, Inc., entered into an agreement with the Texas Natural
1-3 Resource Conservation Commission under the waste tire recycling
1-4 program to recycle waste tires; and
1-5 WHEREAS, Gibson Recycling, Inc., alleges that it performed
1-6 its obligations under the waste tire recycling program; and
1-7 WHEREAS, Gibson Recycling, Inc., alleges that the Texas
1-8 Natural Resource Conservation Commission failed to perform its
1-9 obligations under the agreement and under the waste tire recycling
1-10 program; and
1-11 WHEREAS, Gibson Recycling, Inc., alleges that the Texas
1-12 Natural Resource Conservation Commission has caused Gibson
1-13 Recycling, Inc., to undergo an audit on its operations under the
1-14 waste tire recycling program; and
1-15 WHEREAS, Gibson Recycling, Inc., alleges that the Texas
1-16 Natural Resource Conservation Commission has failed to pay Gibson
1-17 Recycling, Inc., $400,000 to which it is lawfully entitled under
1-18 the waste tire recycling program; and
1-19 WHEREAS, Gibson Recycling, Inc., alleges that it has
1-20 sustained damages as a result of the actions of the Texas Natural
1-21 Resource Conservation Commission; now, therefore, be it
1-22 RESOLVED by the Legislature of the State of Texas, That
1-23 Gibson Recycling, Inc., is granted permission to file a claim
1-24 against the Texas Natural Resource Conservation Commission with the
2-1 State Office of Administrative Hearings for amounts owed under the
2-2 agreement to recycle waste tires; provided, however, that, before
2-3 pursuing the contested case authorized by this resolution, Gibson
2-4 Recycling, Inc., shall attempt to resolve the claim through
2-5 third-party mediation and the Texas Natural Resource Conservation
2-6 Commission is directed to make a good faith effort to resolve the
2-7 claim through the mediation; and, be it further
2-8 RESOLVED, That an administrative law judge of the State
2-9 Office of Administrative Hearings shall hear the claim as a
2-10 contested case under Chapter 2001, Government Code, and render a
2-11 written order containing the administrative law judge's findings of
2-12 facts and recommendations; and, be it further
2-13 RESOLVED, That the Texas Natural Resource Conservation
2-14 Commission may assert in the contested case authorized by this
2-15 resolution any counterclaim or offset that the commission claims
2-16 against Gibson Recycling, Inc., with respect to the agreement; and,
2-17 be it further
2-18 RESOLVED, That the Texas Natural Resource Conservation
2-19 Commission shall pay, exclusively from money appropriated for this
2-20 purpose, the claim or any part of the claim if the administrative
2-21 law judge finds, by a preponderance of the evidence, the claim or
2-22 part of the claim is valid under the laws of this state; and, be it
2-23 further
2-24 RESOLVED, That the amount awarded by the administrative law
2-25 judge in a contested case authorized by this resolution may not
2-26 include any amount attributable to consequential damages resulting
3-1 from any breach of contract or punitive or exemplary damages; and,
3-2 be it further
3-3 RESOLVED, That the amount of a claim paid in accordance with
3-4 any order of an administrative law judge may not exceed the balance
3-5 due and owing on the contract price, including any orders for
3-6 additional work, less any amount owed for work not performed under
3-7 the contract or in substantial compliance with the contract and
3-8 less the amount of any valid counterclaim or offset asserted by the
3-9 Texas Natural Resource Conservation Commission; and, be it further
3-10 RESOLVED, That any act, finding, ruling, or award of an
3-11 administrative law judge in a contested case authorized under this
3-12 resolution is not subject to appeal to any court of this state;
3-13 and, be it further
3-14 RESOLVED, That the administrative law judge may establish a
3-15 fee in an amount that allows the State Office of Administrative
3-16 Hearings to recover its costs with respect to the contested case
3-17 authorized by this resolution and assess the fee against the party
3-18 that does not prevail in the contested case or apportion the fee
3-19 against the parties to the contested case in an equitable manner;
3-20 and, be it further
3-21 RESOLVED, That if legislation is enacted by the 76th
3-22 Legislature under which the State Office of Administrative Hearings
3-23 may hear contract claims against the state, the hearings held by
3-24 the State Office of Administrative Hearings in accordance with this
3-25 resolution shall be held in accordance with that legislation and
3-26 any rules or procedures adopted under that legislation.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.C.R. No. 33 was adopted by the Senate
on April 26, 1999; and that the Senate concurred in House
amendments on May 28, 1999, by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.C.R. No. 33 was adopted by the House,
with amendments, on May 26, 1999.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor