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78R4940 JD-D

By:  Merritt                                                      H.B. No. 1562


A BILL TO BE ENTITLED
AN ACT
relating to applications for public information that are frivolous or filed for the purpose of harassment. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Chapter 552, Government Code, is amended by adding Subchapter J to read as follows:
SUBCHAPTER J. APPLICATIONS FOR PUBLIC INFORMATION THAT ARE FRIVOLOUS OR MADE FOR PURPOSE OF HARASSMENT
Sec. 552.401. APPLICABILITY. (a) This subchapter applies only to: (1) a governmental body of a municipality located in whole or in part in a county having a population of less than 200,000; or (2) a governmental body of a county with a population of 200,000 or less. (b) This subchapter does not apply to an application for public information filed by a bona fide member of the news media acting in that capacity. Sec. 552.402. DUTIES OF STATE OFFICE OF ADMINISTRATIVE HEARINGS. (a) An administrative law judge employed by the State Office of Administrative Hearings shall, on application by an officer for public information of a governmental body, determine whether an application for public information filed with that officer for public information is frivolous or was filed for the purpose of harassment. (b) The State Office of Administrative Hearings shall provide for the stenographic or electronic recording of a hearing conducted under this subchapter. (c) For purposes of this subchapter, an application for public information is filed for the purpose of harassment if: (1) the application is reasonably likely to harass, abuse, or torment a governmental body or the officer for public information of the governmental body; and (2) a primary reason for the application is to cause that result. Sec. 552.403. REQUEST FOR DETERMINATION. (a) An officer for public information who believes that an application for public information filed with that officer is frivolous or filed for the purpose of harassment, instead of complying with Subchapter E, may file with the State Office of Administrative Hearings a request for a determination under this subchapter specifying the grounds for the officer's belief that the application is frivolous or filed for the purpose of harassment. (b) The officer for public information must: (1) file the determination request before the seventh day after the date the application for public information was filed with the officer; (2) file the request in writing; and (3) send a copy of the request to the person who filed the application for public information. (c) A request for a determination stays all proceedings in furtherance of the application for public information that is the subject of the request until the determination of the administrative law judge is made. Sec. 552.404. HEARING LOCATION. A hearing under this subchapter shall be held: (1) at a location designated by the State Office of Administrative Hearings: (A) in the county in which the main administrative offices of the governmental body are located; or (B) in Travis County; or (2) with the consent of the person who filed the application for public information and the public information officer for the governmental body, by telephone conference call. Sec. 552.405. NOTICE OF HEARING. (a) The State Office of Administrative Hearings shall notify the person who filed the application for public information and the officer for public information of the time and location of the hearing. (b) Notice may be given by telephone or other electronic means. If notice is given by telephone or other electronic means, written notice must also be provided. (c) Notice by mail is considered received on the fifth day after the date the notice is deposited with the United States Postal Service. Sec. 552.406. FAILURE TO APPEAR. An officer for public information who requests a hearing and fails to appear without just cause waives the right to a hearing. Sec. 552.407. DETERMINATION BY ADMINISTRATIVE LAW JUDGE. The administrative law judge shall: (1) determine the matter presented within a reasonable time; and (2) notify, in writing as soon as practicable, the person who filed the application for public information and the officer for public information of the administrative law judge's determination. Sec. 552.408. EFFECT OF DETERMINATION. (a) If the determination of the administrative law judge is that the application for public information is not frivolous or not filed for the purpose of harassment, the officer for public information shall promptly comply with the applicable provisions of this chapter, including Subchapter E. (b) If the determination of the administrative law judge is that the application for public information is frivolous or filed for the purpose of harassment, the officer for public information: (1) is relieved of further compliance with this chapter; and (2) is not required to accept or comply with other applications for public information filed by the person for a reasonable period, as determined by the administrative law judge. Sec. 552.409. APPEAL FROM ADMINISTRATIVE HEARING DETERMINATION. (a) The officer for public information or the person who filed the application for public information aggrieved by the determination of the administrative law judge may appeal the determination by filing a petition not later than the 30th day after the date the administrative law judge's determination is made. The administrative law judge's determination is immediately appealable without the requirement of a motion for rehearing. (b) A petition under Subsection (a) must be filed in a county court at law in the county in which the main administrative offices of the governmental body are located or, if there is not a county court at law in the county, in a district court for that county. (c) A person who files an appeal under this section shall send a copy of the petition by certified mail to the State Office of Administrative Hearings at that agency's headquarters in Austin and to the party in opposition at the administrative hearing. The copy must be certified by the clerk of the court in which the petition is filed. (d) An attorney for the governmental body may represent the officer for public information in an appeal. Sec. 552.410. STAY OF DETERMINATION ON APPEAL. The determination of the administrative law judge is stayed on the filing of an appeal petition. Sec. 552.411. REVIEW; ADDITIONAL EVIDENCE. (a) Review on appeal is on the record certified by the State Office of Administrative Hearings with no additional testimony. (b) On appeal, a party may apply to the court to present additional evidence. If the court is satisfied that the additional evidence is material and that there were good reasons for the failure to present it in the proceeding before the administrative law judge, the court may order that the additional evidence be taken before an administrative law judge on conditions determined by the court. (c) There is no right to a jury trial in an appeal under this section. (d) A remand under this section does not stay the original determination of the administrative law judge. Sec. 552.412. TRANSCRIPT OF ADMINISTRATIVE HEARING. (a) To obtain a transcript of an administrative hearing, the party who appeals the administrative law judge's decision must apply to the State Office of Administrative Hearings. (b) On payment of a fee not to exceed the actual cost of preparing the transcript, the State Office of Administrative Hearings shall promptly furnish both parties with a transcript of the administrative hearing. SECTION 2. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2003.