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