BILL ANALYSIS
By: Christian
Committee Report (Substituted)
BACKGROUND AND PURPOSE
Currently, state agencies engaged in rulemaking may not always consider legislative intent when proposing rules. Also, many state agencies often do not inform legislative authors and sponsors about rules relating to their respective bills, and the agencies are only required to publish proposed rules related to legislation in the Texas Register. This leaves a potential gap between the legislature's intent and the implementation of the resulting rule. Rules written by an agency can influence the effect of a piece of legislation, and such rules should reflect the intent of the legislation. Under current law, agencies with broad rulemaking authority may interpret legislation in a way that could conflict with the intent of the legislature.
This bill implements procedures to ensure that agency rules are consistent with legislative intent and grants members of the legislature more control over the rule adoption process within state agencies.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.
ANALYSIS
This bill amends the Government Code by striking current procedures for legislative review in state agencies' rulemaking process, and replaces it with new procedures to consider legislative intent. In the process of developing a new rule and before a state agency issues public notice of its intention to adopt a rule, this bill requires a state agency to research and prepare the legislative history on the law under which the rule is to be adopted.
In order to effectively research and prepare this history, the state agency is required to: (1) gather the names of author and sponsor of the legislation by consulting with the chief clerk of the house of representatives, the secretary of senate, automated information system operated by Texas Legislative Council, or another reliable source; (2) identify any statement or discussion of legislative intent that occurred in the legislative process before enrollment in connection with the legislation; (3) review the final publicly available bill analysis prepared by a legislative office before enrollment; (4) determine if the author or sponsor of the legislature is still a member of the legislature; (5) assemble the information gathered into a legislative history to be used by the agency during the deliberative process of developing new rules. Before a state agency gives notice of its intention to adopt a rule, the agency would be required to: (1) ensure that the proposed rule is consistent with the legislature's intent; (2) notify the primary author and sponsor of the legislation that the member's legislation is being considered.
The agency is required to deliver a copy of the notice filed with the secretary of state, and a copy of the proposed rule to the primary author and sponsor. The proposed rule must be delivered to by the 10th day before the state agency considers it, if the text differs from the proposed rule published under Section 2001.024 of the Government Code.
If a state agency adopts an emergency rule, the agency is required to deliver a copy of it and the written reasons for its adoption to the primary author and sponsor at the time the agency files the rule and reasons with the secretary of state. If the agency gives an abbreviated notice or conducts a hearing in connection with the adoption of the emergency rule, the agency is required to also promptly deliver the primary author and sponsor a copy of the notice and timely inform the primary author and sponsor of the time and place of the hearing. Failure to provide notice does not invalidate an action take or rule adopted. If the primary author or sponsor are no longer members of the legislature, these requirements do not apply.
This bill also adds requirements for state agencies to adhere to when issuing public notice of a proposed rule. A notice of a proposed rule must include a certification that the rule has been reviewed by legal counsel and found to be consistent with the intent of the legislature. A copy of the legislative history prepared by the agency must also be included in the notice. A state agency order adopting a rule must include: a reasoned justification for the rule as adopted consisting of any written comments received from members of the legislature; and the reasons the agency disagrees with any written comments or proposals offered by a member of the legislature.
The bill also requires each house of the legislature to consider the adoption of a rule that allows for the primary author of a bill to enter a statement of legislative intent into the bill analysis and
to allow the author of each adopted amendment to a bill to do the same.
Lastly, the bill makes conforming changes.
EFFECTIVE DATE
September 1, 2007.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The substitute adds language to that of the original, directing both houses of the legislature to consider rule changes that would place legislative intent on the bill analysis prior to committee hearing and update the legislative intent when bill has been amended.
The original bill had the following provisions; whereas the substitute bill does not: