By: West, et al. S.B. No. 485
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to requiring a state agency to consider legislative intent
1-3 during the process of adopting an agency rule.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 2001.032, Government Code, is amended to
1-6 read as follows:
1-7 Sec. 2001.032. CONSIDERATION OF LEGISLATIVE INTENT [REVIEW].
1-8 (a) In this section, a reference to the law under which a rule is
1-9 or would be adopted includes a reference to the law that authorizes
1-10 a state agency to adopt the rule and to the law that the rule would
1-11 implement or enforce.
1-12 (b) Before a state agency gives notice of its intention to
1-13 adopt a rule under Sections 2001.023 and 2001.024, the agency
1-14 shall:
1-15 (1) determine whether a statement or discussion of
1-16 legislative intent was entered into the journals of the senate or
1-17 house of representatives in connection with legislation that became
1-18 law and that added, amended, or clearly affected the law under
1-19 which the rule would be adopted;
1-20 (2) ensure that the proposed rule is consistent with
1-21 the legislature's intent in adding, amending, or affecting the law
1-22 under which the rule would be adopted; and
1-23 (3) inform each author and sponsor of legislation that
1-24 became law and that added, amended, or clearly affected the law
1-25 under which the rule would be adopted, if the person is still a
2-1 member of the legislature, that the adoption of a rule related to
2-2 the member's legislation is being considered.
2-3 (c) The state agency shall deliver a copy of the notice of
2-4 the proposed rule required by Sections 2001.023 and 2001.024 to
2-5 each member of the legislature described by Subsection (b)(3)
2-6 concurrently with the agency's filing of the notice with the
2-7 secretary of state. Not later than the seventh day before the date
2-8 the state agency considers the rule for final adoption, the agency
2-9 shall deliver to the member a copy of the rule as proposed for
2-10 final adoption if the text of the rule differs from the text of the
2-11 proposed rule published under Section 2001.024 and shall solicit
2-12 comment from the member regarding the changed text of the proposed
2-13 rule. The state agency also shall:
2-14 (1) inform the member of the time and place of any
2-15 public hearing or informal conference held in connection with the
2-16 contemplated rulemaking and allow the member to participate; and
2-17 (2) invite the member to participate as a member of
2-18 any advisory committee the state agency appoints in connection with
2-19 the contemplated rulemaking.
2-20 (d) The state agency shall deliver a copy of an emergency
2-21 rule adopted under Section 2001.034 and the written reasons for its
2-22 adoption to each member of the legislature described by Subsection
2-23 (b)(3) with respect to the law under which the emergency rule was
2-24 adopted concurrently with the agency's filing of the rule and the
2-25 reasons for its adoption with the secretary of state. If the state
2-26 agency gives an abbreviated notice or conducts a hearing in
3-1 connection with the adoption of the emergency rule, the agency
3-2 shall promptly furnish the member with a copy of the notice and
3-3 shall timely inform the member of the time and place of any
3-4 hearing. [Each house of the legislature by rule shall establish a
3-5 process under which the presiding officer of each house refers each
3-6 proposed state agency rule to the appropriate standing committee
3-7 for review before the rule is adopted.]
3-8 [(b) A state agency shall deliver to the lieutenant governor
3-9 and the speaker of the house of representatives a copy of the
3-10 notice of a proposed rule when the agency files notice with the
3-11 secretary of state under Section 2001.023.]
3-12 [(c) On the vote of a majority of its members, a standing
3-13 committee may send to a state agency a statement supporting or
3-14 opposing adoption of a proposed rule.]
3-15 SECTION 2. Subsection (a), Section 2001.024, Government
3-16 Code, is amended to read as follows:
3-17 (a) The notice of a proposed rule must include:
3-18 (1) a brief explanation of the proposed rule;
3-19 (2) the text of the proposed rule, except any portion
3-20 omitted under Section 2002.014, prepared in a manner to indicate
3-21 any words to be added or deleted from the current text;
3-22 (3) a statement of the statutory or other authority
3-23 under which the rule is proposed to be adopted, including:
3-24 (A) a concise explanation of the particular
3-25 statutory or other provisions under which the rule is proposed;
3-26 (B) the section or article of the code affected;
4-1 (C) a certification that the state agency has
4-2 complied with Section 2001.032(b) in connection with the proposed
4-3 rule;
4-4 (D) citations to all statements or discussions
4-5 of legislative intent described by Section 2001.032(b)(1) in the
4-6 journals of the senate and house of representatives; and
4-7 (E) [(C)] a certification that the proposed rule
4-8 has been reviewed by legal counsel and found to be:
4-9 (i) within the state agency's authority to
4-10 adopt; and
4-11 (ii) consistent with the intent of the
4-12 legislature in adding, amending, or affecting the law under which
4-13 the rule would be adopted, as described by Section 2001.032(a);
4-14 (4) a fiscal note showing the name and title of the
4-15 officer or employee responsible for preparing or approving the note
4-16 and stating for each year of the first five years that the rule
4-17 will be in effect:
4-18 (A) the additional estimated cost to the state
4-19 and to local governments expected as a result of enforcing or
4-20 administering the rule;
4-21 (B) the estimated reductions in costs to the
4-22 state and to local governments as a result of enforcing or
4-23 administering the rule;
4-24 (C) the estimated loss or increase in revenue to
4-25 the state or to local governments as a result of enforcing or
4-26 administering the rule; and
5-1 (D) if applicable, that enforcing or
5-2 administering the rule does not have foreseeable implications
5-3 relating to cost or revenues of the state or local governments;
5-4 (5) a note about public benefits and costs showing the
5-5 name and title of the officer or employee responsible for preparing
5-6 or approving the note and stating for each year of the first five
5-7 years that the rule will be in effect:
5-8 (A) the public benefits expected as a result of
5-9 adoption of the proposed rule; and
5-10 (B) the probable economic cost to persons
5-11 required to comply with the rule;
5-12 (6) the local employment impact statement prepared
5-13 under Section 2001.022, if required;
5-14 (7) a request for comments on the proposed rule from
5-15 any interested person; and
5-16 (8) any other statement required by law.
5-17 SECTION 3. Section 2001.033, Government Code, is amended to
5-18 read as follows:
5-19 Sec. 2001.033. STATE AGENCY ORDER ADOPTING RULE. (a) A
5-20 state agency order finally adopting a rule must include:
5-21 (1) a reasoned justification for the rule as adopted
5-22 consisting solely of:
5-23 (A) a summary of comments received from parties
5-24 and of any written comments received from members of the
5-25 legislature interested in the rule that shows the names of
5-26 interested groups or associations offering comment on the rule and
6-1 of members of the legislature offering written comment on the rule
6-2 and whether they were for or against its adoption;
6-3 (B) a summary of the factual basis for the rule
6-4 as adopted which demonstrates a rational connection between the
6-5 factual basis for the rule and the rule as adopted; and
6-6 (C) the reasons why the agency disagrees with
6-7 party submissions and proposals and with any written comments or
6-8 proposals offered by a member of the legislature;
6-9 (2) a concise restatement of the particular statutory
6-10 provisions under which the rule is adopted and of how the agency
6-11 interprets the provisions as authorizing or requiring the rule; and
6-12 (3) a certification that the rule, as adopted, has
6-13 been reviewed by legal counsel and found to be:
6-14 (A) a valid exercise of the agency's legal
6-15 authority; and
6-16 (B) consistent with the intent of the
6-17 legislature in adding, amending, or affecting the law under which
6-18 the rule is adopted, as described by Section 2001.032(a).
6-19 (b) Nothing in this section shall be construed to require
6-20 additional analysis of alternatives not adopted by an agency beyond
6-21 that required by Subsection (a)(1)(C) [Subdivision (1)(C)] or to
6-22 require the reasoned justification to be stated separately from the
6-23 statements required in Subsection (a)(1) [Subdivision (1)].
6-24 SECTION 4. The change in law made by this Act applies only
6-25 in relation to:
6-26 (1) a state agency rule for which notice of the rule
7-1 as proposed is first published in the Texas Register under Sections
7-2 2001.023 and 2001.024, Government Code, on or after October 1,
7-3 2001; or
7-4 (2) an emergency rule adopted on or after September
7-5 15, 2001.
7-6 SECTION 5. This Act takes effect September 1, 2001.