76R14095 DLF-D By Ratliff S.C.R. No. 33 Substitute the following for S.C.R. No. 33: By Bosse C.S.S.C.R. No. 33 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; and, be it further 2-3 RESOLVED, That an administrative law judge of the State 2-4 Office of Administrative Hearings shall hear the claim as a 2-5 contested case under Chapter 2001, Government Code, and render a 2-6 written order containing the administrative law judge's findings of 2-7 facts and recommendations; and, be it further 2-8 RESOLVED, That the Texas Natural Resource Conservation 2-9 Commission may assert in the contested case authorized by this 2-10 resolution any counterclaim or offset that the commission claims 2-11 against Gibson Recycling, Inc., with respect to the agreement; and, 2-12 be it further 2-13 RESOLVED, That the Texas Natural Resource Conservation 2-14 Commission shall pay, exclusively from money appropriated for this 2-15 purpose, the claim or any part of the claim if the administrative 2-16 law judge finds, by a preponderance of the evidence, the claim or 2-17 part of the claim is valid under the laws of this state; and, be it 2-18 further 2-19 RESOLVED, That the amount awarded by the administrative law 2-20 judge in a contested case authorized by this resolution may not 2-21 include any amount attributable to consequential damages resulting 2-22 from any breach of contract or punitive or exemplary damages; and, 2-23 be it further 2-24 RESOLVED, That the amount of a claim paid in accordance with 2-25 any order of an administrative law judge may not exceed the balance 2-26 due and owing on the contract price, including any orders for 2-27 additional work, less any amount owed for work not performed under 3-1 the contract or in substantial compliance with the contract and 3-2 less the amount of any valid counterclaim or offset asserted by the 3-3 Texas Natural Resource Conservation Commission; and, be it further 3-4 RESOLVED, That any act, finding, ruling, or award of an 3-5 administrative law judge in a contested case authorized under this 3-6 resolution is not subject to appeal to any court of this state; 3-7 and, be it further 3-8 RESOLVED, That the administrative law judge may establish a 3-9 fee in an amount that allows the State Office of Administrative 3-10 Hearings to recover its costs with respect to the contested case 3-11 authorized by this resolution, and assess the fee against the party 3-12 that does not prevail in the contested case or apportion the fee 3-13 against the parties to the contested case in an equitable manner; 3-14 and, be it further 3-15 RESOLVED, That if legislation is enacted by the 76th 3-16 Legislature under which the State Office of Administrative Hearings 3-17 may hear contract claims against the state, the hearings held by 3-18 the State Office of Administrative Hearings in accordance with this 3-19 resolution shall be held in accordance with that legislation and 3-20 any rules or procedures adopted under that legislation. 3-21 BEGCAPTION 3-22 Granting Gibson Recycling, Inc., permission to bring a claim 3-23 against the Texas Natural Resource Conservation Commission. 3-24 ENDCAPTION