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78R1345 JRD-D
By: Christian H.B. No. 425
A BILL TO BE ENTITLED
AN ACT
relating to requiring a state agency to consider legislative intent
during the process of adopting an agency rule.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2001.032, Government Code, is amended to
read as follows:
Sec. 2001.032. CONSIDERATION OF LEGISLATIVE INTENT [REVIEW].
(a) In this section, a reference to the law under which a rule is or
would be adopted includes a reference to the law that authorizes a
state agency to adopt the rule and to the law that the rule would
implement or enforce.
(b) Before a state agency gives notice of its intention to
adopt a rule under Sections 2001.023 and 2001.024, the agency
shall:
(1) determine whether a statement or discussion of
legislative intent was entered into the journals of the senate or
house of representatives in connection with legislation that became
law and that added, amended, or clearly affected the law under which
the rule would be adopted;
(2) ensure that the proposed rule is consistent with
the legislature's intent in enacting or otherwise affecting the law
under which the rule would be adopted; and
(3) inform each author and sponsor of legislation that
became law and that added, amended, or clearly affected the law
under which the rule would be adopted, if the person is still a
member of the legislature, that the adoption of a rule related to
the member's legislation is being considered.
(c) The state agency shall deliver a copy of the notice of
the proposed rule required by Sections 2001.023 and 2001.024 to
each member of the legislature described by Subsection (b)(3)
concurrently with the agency's filing of the notice with the
secretary of state. Not later than the seventh day before the date
the state agency considers the rule for final adoption, the agency
shall also deliver to the member a copy of the rule as proposed for
final adoption if the text of the rule differs from the text of the
proposed rule published under Section 2001.024 and shall solicit
comment from the member regarding the changed text of the proposed
rule. The state agency also shall:
(1) timely inform the member of the time and place of
any public hearing or informal conference held in connection with
the contemplated rulemaking and allow the member to participate;
and
(2) invite the member to participate as a member of any
advisory committee the state agency appoints in connection with the
contemplated rulemaking.
(d) The state agency shall deliver a copy of an emergency
rule adopted under Section 2001.034 and the written reasons for its
adoption to each member of the legislature described by Subsection
(b)(3) with respect to the law under which the emergency rule was
adopted concurrently with the agency's filing of the rule and the
reasons for its adoption with the secretary of state. If the state
agency gives an abbreviated notice or conducts a hearing in
connection with the adoption of the emergency rule, the agency
shall also promptly furnish the member with a copy of the notice and
shall timely inform the member of the time and place of any hearing.
[Each house of the legislature by rule shall establish a process
under which the presiding officer of each house refers each
proposed state agency rule to the appropriate standing committee
for review before the rule is adopted.
[(b) A state agency shall deliver to the lieutenant governor
and the speaker of the house of representatives a copy of the notice
of a proposed rule when the agency files notice with the secretary
of state under Section 2001.023.
[(c) On the vote of a majority of its members, a standing
committee may send to a state agency a statement supporting or
opposing adoption of a proposed rule.]
SECTION 2. Section 2001.024(a), Government Code, is amended
to read as follows:
(a) The notice of a proposed rule must include:
(1) a brief explanation of the proposed rule;
(2) the text of the proposed rule, except any portion
omitted under Section 2002.014, prepared in a manner to indicate
any words to be added or deleted from the current text;
(3) a statement of the statutory or other authority
under which the rule is proposed to be adopted, including:
(A) a concise explanation of the particular
statutory or other provisions under which the rule is proposed;
(B) the section or article of the code affected;
(C) a certification that the state agency has
complied with Section 2001.032(b) in connection with the proposed
rule;
(D) citations to all statements or discussions of
legislative intent described by Section 2001.032(b)(1) in the
journals of the senate and house of representatives; and
(E) [(C)] a certification that the proposed rule
has been reviewed by legal counsel and found to be:
(i) within the state agency's authority to
adopt; and
(ii) consistent with the intent of the
legislature in enacting or otherwise affecting the law under which
the rule would be adopted, as described by Section 2001.032(a);
(4) a fiscal note showing the name and title of the
officer or employee responsible for preparing or approving the note
and stating for each year of the first five years that the rule will
be in effect:
(A) the additional estimated cost to the state
and to local governments expected as a result of enforcing or
administering the rule;
(B) the estimated reductions in costs to the
state and to local governments as a result of enforcing or
administering the rule;
(C) the estimated loss or increase in revenue to
the state or to local governments as a result of enforcing or
administering the rule; and
(D) if applicable, that enforcing or
administering the rule does not have foreseeable implications
relating to cost or revenues of the state or local governments;
(5) a note about public benefits and costs showing the
name and title of the officer or employee responsible for preparing
or approving the note and stating for each year of the first five
years that the rule will be in effect:
(A) the public benefits expected as a result of
adoption of the proposed rule; and
(B) the probable economic cost to persons
required to comply with the rule;
(6) the local employment impact statement prepared
under Section 2001.022, if required;
(7) a request for comments on the proposed rule from
any interested person; and
(8) any other statement required by law.
SECTION 3. Section 2001.033, Government Code, is amended to
read as follows:
Sec. 2001.033. STATE AGENCY ORDER ADOPTING RULE. (a) A
state agency order finally adopting a rule must include:
(1) a reasoned justification for the rule as adopted
consisting solely of:
(A) a summary of comments received from parties
and of any written comments received from members of the
legislature interested in the rule that shows the names of
interested groups or associations offering comment on the rule and
of members of the legislature offering written comment on the rule
and whether they were for or against its adoption;
(B) a summary of the factual basis for the rule as
adopted which demonstrates a rational connection between the
factual basis for the rule and the rule as adopted; and
(C) the reasons why the agency disagrees with
party submissions and proposals and with any written comments or
proposals offered by a member of the legislature;
(2) a concise restatement of the particular statutory
provisions under which the rule is adopted and of how the agency
interprets the provisions as authorizing or requiring the rule; and
(3) a certification that the rule, as adopted, has
been reviewed by legal counsel and found to be:
(A) a valid exercise of the agency's legal
authority; and
(B) consistent with the intent of the legislature
in enacting or otherwise affecting the law under which the rule is
adopted, as described by Section 2001.032(a).
(b) Nothing in this section shall be construed to require
additional analysis of alternatives not adopted by an agency beyond
that required by Subsection (a)(1)(C) [Subdivision (1)(C)] or to
require the reasoned justification to be stated separately from the
statements required in Subsection (a)(1) [Subdivision (1)].
SECTION 4. The change in law made by this Act applies only
in relation to:
(1) a state agency rule for which notice of the rule as
proposed is first published in the Texas Register under Sections
2001.023 and 2001.024, Government Code, on or after October 1,
2003; or
(2) an emergency rule adopted on or after September
15, 2003.
SECTION 5. This Act takes effect September 1, 2003.