Amend CSSB 1952 as follows:
(1) In SECTION 8B.09 of the bill (House Committee Report, page 183, line 12), strike "State Office of Administrative
Hearings" and substitute "commission's office of hearings
examiners".
(2) Add the following article to Part 8 of the bill:
ARTICLE 8J. ADMINISTRATIVE HEARINGS
SECTION 8J.01. Subchapter H, Chapter 5, Water Code, is
amended to read as follows:
SUBCHAPTER H. DELEGATION OF HEARINGS; OFFICE OF HEARING EXAMINERS
Sec. 5.311. DEFINITION. In this subchapter, "office" means
the office of hearing examiners created under Section 5.312.
Sec. 5.312. OFFICE OF HEARING EXAMINERS. (a) The
commission shall create an office of hearing examiners to assist
the commission in carrying out its powers and duties.
(b) The office is:
(1) independent of the executive director and the
divisions of the commission; and
(2) under the exclusive control of the commission.
Sec. 5.313. ORGANIZATION OF OFFICE OF HEARING EXAMINERS.
The office is under the direction of a chief hearing examiner. The
chief hearing examiner and all assistant hearing examiners employed
in the office must be:
(1) attorneys licensed to practice law in this state;
and
(2) employees of the commission.
Sec. 5.314. DELEGATION OF RESPONSIBILITY. (a) The
commission may delegate to a hearing examiner the responsibility to
hear any matter before the commission.
(b) A hearing examiner shall:
(1) prepare for and hold any contested case hearing as
directed by the commission; and
(2) report to the commission on the hearing in the
manner provided by law.
Sec. 5.315. DEADLINE TO COMPLETE HEARING; DOCKET CONTROL.
(a) In referring a matter for hearing, the executive director by
rule shall specify to a hearing examiner the date by which the
hearing examiner is expected to complete a proceeding and submit a
proposal for decision to the commission.
(b) A hearing examiner may extend a proceeding past the date
specified under Subsection (a) if the hearing examiner determines
that the failure to grant the extension would deprive a party of due
process or another constitutionally granted right.
(c) A hearing examiner shall establish a docket control
order designed to complete the proceeding by the date specified
under Subsection (a).
Sec. 5.316. HEARINGS; SCOPE. The scope of a hearing may be
limited by stipulations of the parties or summary dispositions as
provided by commission rule.
Sec. 5.317. COMMISSION RULES FOR HEARINGS. (a) The
commission by rule shall:
(1) provide for subpoenas and commissions for
depositions;
(2) require that discovery be conducted in accordance
with the Texas Rules of Civil Procedure and determine the level of
discovery under Rule 190, Texas Rules of Civil Procedure,
appropriate for each type of case considered by the commission,
considering the nature and complexity of the case; and
(3) provide for certification to the commission of an
issue that involves an ultimate finding of compliance with or
satisfaction of a statutory standard the determination of which is
committed to the discretion or judgment of the commission by law.
(b) Rules adopted under Subsection (a)(3) must address, at a
minimum:
(1) the issues that are appropriate for certification;
and
(2) the procedure to be used in certifying the issue.
Sec. 5.318. HEARINGS; SANCTIONS. (a) A hearing examiner
hearing a case on behalf of the commission may impose sanctions as
provided under Subsection (c) against a party or its representative
for:
(1) filing a motion or pleading that is groundless and
brought:
(A) in bad faith;
(B) for the purpose of harassment; or
(C) for any other improper purpose to cause
unnecessary delay or needless increase in the cost of the
proceeding;
(2) abuse of the discovery process in seeking, making,
or resisting discovery; or
(3) failure to obey an order of the hearing examiner or
the commission.
(b) A hearing examiner may impose a sanction under
Subsection (a):
(1) on the motion of:
(A) a party; or
(B) the hearing examiner; and
(2) only after notice and an opportunity for a
hearing.
(c) A sanction imposed under Subsection (a) may include
issuance of an order:
(1) disallowing further discovery of any kind or any
particular kind by the offending party;
(2) charging all or part of the expenses of discovery
against the offending party or its representative;
(3) holding that designated facts be considered
admitted for the purposes of the hearing;
(4) refusing to allow the offending party to support
or oppose a designated claim or defense or prohibiting the party
from introducing designated matters in evidence;
(5) disallowing wholly or partly requests for relief
by the offending party and excluding evidence in support of those
requests; and
(6) wholly or partly striking pleadings or testimony
or both pleadings and testimony.
Sec. 5.319. FINDINGS AND PROPOSAL FOR DECISION; ORDER OF
COMMISSION. (a) After hearing evidence and receiving legal
argument, a hearing examiner shall make findings of fact,
conclusions of law, and any ultimate finding required by statute,
all of which shall be separately stated.
(b) The hearing examiner shall make a proposal for decision
to the commission and shall serve the proposal for decision on all
parties.
(c) The commission shall give each party an opportunity to
file:
(1) exceptions to the proposal for decision; and
(2) briefs related to the issues addressed in the
proposal for decision.
(d) Except as provided by Section 361.0832, Health and
Safety Code, the commission shall consider:
(1) a proposal for decision prepared by a hearing
examiner;
(2) any exceptions by the parties; and
(3) briefs of the parties.
(e) The commission may amend a proposal for decision,
including any finding of fact, but any amendment to the proposal or
order from the amended proposal must be based solely on the record
made before the hearing examiner. Any amendment to a proposal must
be accompanied by an explanation of the basis of the amendment.
(f) The commission may refer a matter back to the hearing
examiner to:
(1) reconsider a finding or conclusion stated in a
proposal for decision;
(2) receive additional evidence; or
(3) make additional findings of fact or conclusions of
law.
(g) The commission shall serve a copy of the commission's
order, including its findings of fact and conclusions of law, on
each party.
Sec. 5.320. APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT.
Chapter 2001, Government Code, applies to a hearing under this
subchapter except to the extent that it conflicts with this
subchapter.
Sec. 5.321. ALTERNATIVE DISPUTE RESOLUTION. (a) If the
commission has conducted an unsuccessful alternative dispute
resolution procedure, a hearing examiner may not refer a case to an
alternative dispute resolution procedure unless each party agrees
to the referral.
(b) If the commission has not conducted an alternative
dispute resolution procedure, the hearing examiner shall consider
the commission's recommendation in determining whether to order the
referral of the case to an alternative dispute resolution
procedure.
Sec. 5.322. REFERENCE TO ADMINISTRATIVE LAW JUDGE. A
reference to an administrative law judge in this chapter or Chapter
26 or 31 of this code, or Chapter 361 or 382, Health and Safety Code,
means a hearing examiner under this subchapter. [DELEGATION OF
RESPONSIBILITY. (a) The commission may delegate to an
administrative law judge of the State Office of Administrative
Hearings the responsibility to hear any matter before the
commission and to issue interlocutory orders related to interim
rates under Chapter 13.
[(b) Except as provided in Subsection (a), the
administrative law judge shall report to the commission on the
hearing in the manner provided by law.
[Sec. 5.312. TIME LIMIT FOR ISSUANCE OR DENIAL OF PERMITS.
(a) Except as provided in Subsection (b), all permit decisions
shall be made within 180 days of the receipt of the permit
application or application amendment or the determination of
administrative completeness, whichever is later.
[(b) This section does not apply to permits issued under
federally delegated or approved programs unless allowed under that
program.
[Sec. 5.313. HEARING EXAMINERS REFERENCED IN LAW. Any
reference in law to a hearing examiner who has a duty related to a
case pending before the commission means an administrative law
judge of the State Office of Administrative Hearings.]
SECTION 8J.02. (a) On January 1, 2004, all equipment, data,
facilities, case files, records, and other items of the Natural
Resources Division of the State Office of Administrative Hearings
are transferred to the Texas Commission on Environmental Quality.
The Natural Resources Division of the State Office of
Administrative Hearings is abolished.
(b) Not later than January 1, 2004, the Texas Commission on
Environmental Quality shall:
(1) employ hearing examiners who have the expertise
necessary to conduct hearings with technical and other specialized
subject matters that may come before the commission; and
(2) implement all administrative changes necessary
for the commission to assume the functions of the administrative
law judges in the Natural Resources Division of the State Office of
Administrative Hearings.
(c) Except as provided in Subsections (d) and (e) of this
section, the State Office of Administrative Hearings shall continue
to employ an administrative law judge who is hearing a case pending
before the State Office of Administrative Hearings on behalf of the
Texas Commission on Environmental Quality on January 1, 2004, until
the judge renders a proposal for decision in the case, and the judge
shall continue to hear a case assigned to the judge as if the
abolition of the Natural Resources Division of the State Office of
Administrative Hearings had not occurred.
(d) If a hearing examiner or administrative law judge
employed by the State Office of Administrative Hearings is hearing
a case pending before the Texas Commission on Environmental Quality
on the effective date of this Act and that examiner or judge is
offered and accepts a position as a hearing examiner of the
commission, the chief hearing examiner of the Office of Hearing
Examiners of the Texas Commission on Environmental Quality shall
assign that case to that hearing examiner to render a proposal for
decision.
(e) If an administrative law judge accepts a position as a
hearing examiner in the Office of Hearing Examiners of the Texas
Commission on Environmental Quality, the State Office of
Administrative Hearings shall transfer any case pending before that
office to the Office of Hearing Examiners of the Texas Commission on
Environmental Quality and the commission shall assign the case to
the judge to render a proposal for decision.
(f) As soon as practicable, but not later than January 1,
2004, the chief administrative law judge of the State Office of
Administrative Hearings shall consult with the Texas Commission on
Environmental Quality to:
(1) assist the commission in determining the number of
and requirements for hearing examiners needed for the commission to
conduct hearings effectively; and
(2) make necessary administrative changes in that
office and the commission.