1-1 By: West, et al. S.B. No. 485
1-2 (In the Senate - Filed January 31, 2001; February 1, 2001,
1-3 read first time and referred to Committee on State Affairs;
1-4 March 26, 2001, reported favorably by the following vote: Yeas 7,
1-5 Nays 0; March 26, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to requiring a state agency to consider legislative intent
1-9 during the process of adopting an agency rule.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 2001.032, Government Code, is amended to
1-12 read as follows:
1-13 Sec. 2001.032. CONSIDERATION OF LEGISLATIVE INTENT [REVIEW].
1-14 (a) In this section, a reference to the law under which a rule is
1-15 or would be adopted includes a reference to the law that authorizes
1-16 a state agency to adopt the rule and to the law that the rule would
1-17 implement or enforce.
1-18 (b) Before a state agency gives notice of its intention to
1-19 adopt a rule under Sections 2001.023 and 2001.024, the agency
1-20 shall:
1-21 (1) determine whether a statement or discussion of
1-22 legislative intent was entered into the journals of the senate or
1-23 house of representatives in connection with legislation that became
1-24 law and that added, amended, or clearly affected the law under
1-25 which the rule would be adopted;
1-26 (2) ensure that the proposed rule is consistent with
1-27 the legislature's intent in adding, amending, or affecting the law
1-28 under which the rule would be adopted; and
1-29 (3) inform each author and sponsor of legislation that
1-30 became law and that added, amended, or clearly affected the law
1-31 under which the rule would be adopted, if the person is still a
1-32 member of the legislature, that the adoption of a rule related to
1-33 the member's legislation is being considered.
1-34 (c) The state agency shall deliver a copy of the notice of
1-35 the proposed rule required by Sections 2001.023 and 2001.024 to
1-36 each member of the legislature described by Subsection (b)(3)
1-37 concurrently with the agency's filing of the notice with the
1-38 secretary of state. Not later than the seventh day before the date
1-39 the state agency considers the rule for final adoption, the agency
1-40 shall deliver to the member a copy of the rule as proposed for
1-41 final adoption if the text of the rule differs from the text of the
1-42 proposed rule published under Section 2001.024 and shall solicit
1-43 comment from the member regarding the changed text of the proposed
1-44 rule. The state agency also shall:
1-45 (1) inform the member of the time and place of any
1-46 public hearing or informal conference held in connection with the
1-47 contemplated rulemaking and allow the member to participate; and
1-48 (2) invite the member to participate as a member of
1-49 any advisory committee the state agency appoints in connection with
1-50 the contemplated rulemaking.
1-51 (d) The state agency shall deliver a copy of an emergency
1-52 rule adopted under Section 2001.034 and the written reasons for its
1-53 adoption to each member of the legislature described by Subsection
1-54 (b)(3) with respect to the law under which the emergency rule was
1-55 adopted concurrently with the agency's filing of the rule and the
1-56 reasons for its adoption with the secretary of state. If the state
1-57 agency gives an abbreviated notice or conducts a hearing in
1-58 connection with the adoption of the emergency rule, the agency
1-59 shall promptly furnish the member with a copy of the notice and
1-60 shall timely inform the member of the time and place of any
1-61 hearing. [Each house of the legislature by rule shall establish a
1-62 process under which the presiding officer of each house refers each
1-63 proposed state agency rule to the appropriate standing committee
1-64 for review before the rule is adopted.]
2-1 [(b) A state agency shall deliver to the lieutenant governor
2-2 and the speaker of the house of representatives a copy of the
2-3 notice of a proposed rule when the agency files notice with the
2-4 secretary of state under Section 2001.023.]
2-5 [(c) On the vote of a majority of its members, a standing
2-6 committee may send to a state agency a statement supporting or
2-7 opposing adoption of a proposed rule.]
2-8 SECTION 2. Subsection (a), Section 2001.024, Government
2-9 Code, is amended to read as follows:
2-10 (a) The notice of a proposed rule must include:
2-11 (1) a brief explanation of the proposed rule;
2-12 (2) the text of the proposed rule, except any portion
2-13 omitted under Section 2002.014, prepared in a manner to indicate
2-14 any words to be added or deleted from the current text;
2-15 (3) a statement of the statutory or other authority
2-16 under which the rule is proposed to be adopted, including:
2-17 (A) a concise explanation of the particular
2-18 statutory or other provisions under which the rule is proposed;
2-19 (B) the section or article of the code affected;
2-20 (C) a certification that the state agency has
2-21 complied with Section 2001.032(b) in connection with the proposed
2-22 rule;
2-23 (D) citations to all statements or discussions
2-24 of legislative intent described by Section 2001.032(b)(1) in the
2-25 journals of the senate and house of representatives; and
2-26 (E) [(C)] a certification that the proposed rule
2-27 has been reviewed by legal counsel and found to be:
2-28 (i) within the state agency's authority to
2-29 adopt; and
2-30 (ii) consistent with the intent of the
2-31 legislature in adding, amending, or affecting the law under which
2-32 the rule would be adopted, as described by Section 2001.032(a);
2-33 (4) a fiscal note showing the name and title of the
2-34 officer or employee responsible for preparing or approving the note
2-35 and stating for each year of the first five years that the rule
2-36 will be in effect:
2-37 (A) the additional estimated cost to the state
2-38 and to local governments expected as a result of enforcing or
2-39 administering the rule;
2-40 (B) the estimated reductions in costs to the
2-41 state and to local governments as a result of enforcing or
2-42 administering the rule;
2-43 (C) the estimated loss or increase in revenue to
2-44 the state or to local governments as a result of enforcing or
2-45 administering the rule; and
2-46 (D) if applicable, that enforcing or
2-47 administering the rule does not have foreseeable implications
2-48 relating to cost or revenues of the state or local governments;
2-49 (5) a note about public benefits and costs showing the
2-50 name and title of the officer or employee responsible for preparing
2-51 or approving the note and stating for each year of the first five
2-52 years that the rule will be in effect:
2-53 (A) the public benefits expected as a result of
2-54 adoption of the proposed rule; and
2-55 (B) the probable economic cost to persons
2-56 required to comply with the rule;
2-57 (6) the local employment impact statement prepared
2-58 under Section 2001.022, if required;
2-59 (7) a request for comments on the proposed rule from
2-60 any interested person; and
2-61 (8) any other statement required by law.
2-62 SECTION 3. Section 2001.033, Government Code, is amended to
2-63 read as follows:
2-64 Sec. 2001.033. STATE AGENCY ORDER ADOPTING RULE. (a) A
2-65 state agency order finally adopting a rule must include:
2-66 (1) a reasoned justification for the rule as adopted
2-67 consisting solely of:
2-68 (A) a summary of comments received from parties
2-69 and of any written comments received from members of the
3-1 legislature interested in the rule that shows the names of
3-2 interested groups or associations offering comment on the rule and
3-3 of members of the legislature offering written comment on the rule
3-4 and whether they were for or against its adoption;
3-5 (B) a summary of the factual basis for the rule
3-6 as adopted which demonstrates a rational connection between the
3-7 factual basis for the rule and the rule as adopted; and
3-8 (C) the reasons why the agency disagrees with
3-9 party submissions and proposals and with any written comments or
3-10 proposals offered by a member of the legislature;
3-11 (2) a concise restatement of the particular statutory
3-12 provisions under which the rule is adopted and of how the agency
3-13 interprets the provisions as authorizing or requiring the rule; and
3-14 (3) a certification that the rule, as adopted, has
3-15 been reviewed by legal counsel and found to be:
3-16 (A) a valid exercise of the agency's legal
3-17 authority; and
3-18 (B) consistent with the intent of the
3-19 legislature in adding, amending, or affecting the law under which
3-20 the rule is adopted, as described by Section 2001.032(a).
3-21 (b) Nothing in this section shall be construed to require
3-22 additional analysis of alternatives not adopted by an agency beyond
3-23 that required by Subsection (a)(1)(C) [Subdivision (1)(C)] or to
3-24 require the reasoned justification to be stated separately from the
3-25 statements required in Subsection (a)(1) [Subdivision (1)].
3-26 SECTION 4. The change in law made by this Act applies only
3-27 in relation to:
3-28 (1) a state agency rule for which notice of the rule
3-29 as proposed is first published in the Texas Register under Sections
3-30 2001.023 and 2001.024, Government Code, on or after October 1,
3-31 2001; or
3-32 (2) an emergency rule adopted on or after September
3-33 15, 2001.
3-34 SECTION 5. This Act takes effect September 1, 2001.
3-35 * * * * *