By Wentworth S.B. No. 1691
77R1290 MTB-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to judicial review under the Administrative Procedure Act
1-3 of state agency orders and decisions and of the validity of agency
1-4 rules.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Title 2, Government Code, is amended by adding
1-7 Subtitle I to read as follows:
1-8 SUBTITLE I. JUDICIAL REVIEW OF CERTAIN STATE AGENCY ACTIONS
1-9 CHAPTER 101. STATUTORY COURT OF ADMINISTRATIVE REVIEW
1-10 SUBCHAPTER A. GENERAL PROVISIONS
1-11 Sec. 101.001. COURT OF ADMINISTRATIVE REVIEW. The Court of
1-12 Administrative Review is established as a statutory court in the
1-13 judicial branch of state government under Section 1, Article V,
1-14 Texas Constitution.
1-15 Sec. 101.002. COMPOSITION; ELECTION. The court is composed
1-16 of four judges and a presiding judge elected by the qualified
1-17 voters of the state at a general election.
1-18 Sec. 101.003. TERMS OF OFFICE. Judges of the court serve
1-19 staggered two-year terms of office with two judges' terms expiring
1-20 January 1 of each odd-numbered year and three judges' terms
1-21 expiring January 1 of each even-numbered year.
1-22 Sec. 101.004. VACANCY. In the event of a vacancy on the
1-23 court, the governor shall fill the vacancy by appointment until the
1-24 next succeeding general election.
2-1 Sec. 101.005. STATUS OF COURT; APPLICABILITY OF OTHER LAW.
2-2 The court is a trial court but Chapter 23 does not apply to the
2-3 court.
2-4 Sec. 101.006. LOCATION OF COURT. (a) The court sits in the
2-5 city of Austin.
2-6 (b) The General Services Commission shall provide office
2-7 space and supplies for the court. The commission shall provide
2-8 courtroom space for the court unless the court can satisfy its need
2-9 for courtroom space by using the courtroom of the Court of Appeals
2-10 for the Third Supreme Judicial District at times that are
2-11 convenient to the court of appeals.
2-12 Sec. 101.007. TERM OF COURT. The court's term begins and
2-13 ends with each calendar year.
2-14 Sec. 101.008. PERSONNEL. The court may employ clerks, court
2-15 reporters, and other personnel necessary for the business of the
2-16 court.
2-17 Sec. 101.009. COMPENSATION. (a) The legislature shall
2-18 determine the salaries of the judges and of the clerks and other
2-19 officers and employees of the court in its appropriations acts for
2-20 the support of the judiciary.
2-21 (b) Judges of the court are members of the Judicial
2-22 Retirement System of Texas Plan Two. Other court personnel are
2-23 state employee members of the Employees Retirement System of Texas.
2-24 (Sections 101.010-101.050 reserved for expansion
2-25 SUBCHAPTER B. JURISDICTION AND PROCEDURE
2-26 Sec. 101.051. JURISDICTION. (a) The court has jurisdiction
2-27 to hear and determine each suit for the judicial review of a state
3-1 agency decision in a contested case that is subject to judicial
3-2 review under the substantial evidence rule or under an undefined
3-3 scope of review in accordance with Sections 2001.174 and 2001.175.
3-4 (b) The court has jurisdiction to hear and determine by
3-5 declaratory judgment the validity or applicability of a state
3-6 agency rule in all actions that are brought under Section 2001.038.
3-7 Sec. 101.052. POWERS. In addition to its powers under
3-8 Chapters 21 and 2001, the court may:
3-9 (1) ascertain, on affidavit or otherwise as the court
3-10 may determine, the matters of fact that are necessary to the proper
3-11 exercise of its jurisdiction;
3-12 (2) issue such writs as are necessary to the proper
3-13 exercise or enforcement of its jurisdiction; and
3-14 (3) in a proper case, enjoin or modify the enforcement
3-15 of a state agency's final order or decision in a case that is
3-16 otherwise before the court for judicial review, pending the court's
3-17 final judgment in the case.
3-18 Sec. 101.053. RULES OF PROCEDURE; ASSIGNMENT OF CASES. (a)
3-19 The court may adopt rules of procedure that are consistent with the
3-20 Texas Rules of Civil Procedure and applicable law.
3-21 (b) The court may in its discretion hear and determine a
3-22 matter en banc or provide that the matter will be heard and
3-23 determined by a panel of judges or by an individual judge.
3-24 Sec. 101.054. APPEAL FROM JUDGMENT OF COURT. An appeal from
3-25 a judgment of the court is direct to the supreme court. The supreme
3-26 court shall prescribe the necessary rules of procedure to be
3-27 followed in perfecting the appeal.
4-1 SECTION 2. Section 2001.038(b), Government Code, is amended
4-2 to read as follows:
4-3 (b) The action may be brought only in the Court of
4-4 Administrative Review [a Travis County district court].
4-5 SECTION 3. Section 2001.176, Government Code, is amended by
4-6 amending Subsections (b) and (c) and by adding Subsection (d) to
4-7 read as follows:
4-8 (b) Unless otherwise provided by statute:
4-9 (1) the petition must be filed:
4-10 (A) in a Travis County district court if the
4-11 manner of review authorized by law for the decision in the
4-12 contested case is by trial de novo; or
4-13 (B) in the Court of Administrative Review if the
4-14 manner of review authorized by law for the decision in the
4-15 contested case is other than by trial de novo;
4-16 (2) a copy of the petition must be served on the state
4-17 agency and each party of record in the proceedings before the
4-18 agency; and
4-19 (3) the filing of the petition vacates a state agency
4-20 decision for which trial de novo is the manner of review authorized
4-21 by law but does not affect the enforcement of an agency decision
4-22 for which another manner of review is authorized.
4-23 (c) A Travis County district court in which an action is
4-24 brought under Subsection (b)(1)(A) [this section], on its own
4-25 motion or on motion of any party, may request transfer of the
4-26 action to the Court of Appeals for the Third Court of Appeals
4-27 District if the district court finds that the public interest
5-1 requires a prompt, authoritative determination of the legal issues
5-2 in the case and the case would ordinarily be appealed. After
5-3 filing of the district court's request with the court of appeals,
5-4 transfer of the action may be granted by the court of appeals if it
5-5 agrees with the findings of the district court concerning the
5-6 application of the statutory standards to the action. On entry of
5-7 an order by the court of appeals granting transfer, the action is
5-8 transferred to the court of appeals for decision, and the agency
5-9 decision in the contested case is subject to judicial review by the
5-10 court of appeals. The administrative record and the district court
5-11 record shall be filed by the district clerk with the clerk of the
5-12 court of appeals. The court of appeals may direct the district
5-13 court to conduct any necessary evidentiary hearings in connection
5-14 with the action.
5-15 (d) Another statute that provides that a Travis County
5-16 district court is the reviewing court for a decision in a contested
5-17 case for which the manner of review authorized by law is other than
5-18 by trial de novo is considered to provide that the Court of
5-19 Administrative Review is the reviewing court for the decision.
5-20 SECTION 4. Subchapter G, Chapter 2001, Government Code, is
5-21 amended by adding Section 2001.1761 to read as follows:
5-22 Sec. 2001.1761. TRANSFER IF STATUTE UNCONSTITUTIONALLY
5-23 AUTHORIZES TRIAL DE NOVO REVIEW. If a statute authorizes trial de
5-24 novo review of a contested case in circumstances under which the
5-25 Texas Constitution does not permit trial de novo review and the
5-26 petitioner initiates judicial review in the contested case by
5-27 filing a petition in Travis County district court in accordance
6-1 with Section 2001.176, the trial court or an appellate court on its
6-2 own motion or on motion of any party shall transfer the case to the
6-3 Court of Administrative Review. After allowing a reasonable time
6-4 for the preparation and filing of the state agency record, the
6-5 Court of Administrative Review shall determine the case as if it
6-6 had been filed with that court.
6-7 SECTION 5. Section 2001.038(f), Government Code, is
6-8 repealed.
6-9 SECTION 6. (a) Except as provided by Subsection (b) of this
6-10 section, this Act takes effect January 1, 2002, and applies only to
6-11 an action brought under Section 2001.038, Government Code, as
6-12 amended by this Act, or an action for which a petition is filed
6-13 under Section 2001.176, Government Code, as amended by this Act, on
6-14 or after that date. An action brought under Section 2001.038,
6-15 Government Code, as amended by this Act, or an action for which a
6-16 petition is filed under Section 2001.176, Government Code, as
6-17 amended by this Act, before that date is governed by the law in
6-18 effect at the time the action is brought or the petition is filed,
6-19 and the former law is continued in effect for this purpose.
6-20 (b) This Act takes effect September 1, 2001, for the limited
6-21 purpose of allowing the governor to make the initial appointments
6-22 to the Court of Administrative Review as soon as possible on or
6-23 after that date so that the court may adopt and publicize interim
6-24 rules, hire staff, and take other action necessary for it to begin
6-25 its business on January 1, 2002. A judge may qualify for office
6-26 and a judge or employee of the court may begin administrative
6-27 duties and receive compensation before January 1, 2002. The
7-1 governor shall appoint:
7-2 (1) two judges for initial terms expiring January 1,
7-3 2003; and
7-4 (2) three judges for initial terms expiring January 1,
7-5 2004, one of whom shall be designated by the governor as the
7-6 presiding judge of the court.
7-7 (c) At the general election held on November 5, 2002, two
7-8 judges shall be elected to replace the appointed judges whose terms
7-9 expire January 1, 2003. At the general election held on November
7-10 4, 2003, three judges, including the presiding judge, shall be
7-11 elected to replace the appointed judges whose terms expire January
7-12 1, 2004.