| TO: | Honorable Linda Harper-Brown, Chair, House Committee on Government Efficiency & Reform |
| FROM: | Ursula Parks, Director, Legislative Budget Board |
| IN RE: | HB87 by Callegari (Relating to regulation of an individual's occupation.), As Introduced |
This bill would amend the Labor Code to allow an individual to participate in a lawful occupation without being subject to state agency regulation if the state agency regulation is "substantially burdensome" and "unnecessary to fulfill the purpose and intent of the statute authorizing the regulation of the occupation."
The bill would stipulate that a state agency may substantially burden an individual's right to engage in an occupation only if the agency demonstrates the regulation is necessary to fulfill the intent of the statute authorizing the regulation of the occupation.
The bill would create an affirmative defense allowing an individual to assert an agency regulation is substantially burdensome and unnecessary to fulfill statutory intent. An individual doing so must demonstrate with "a preponderance of the evidence" that the state agency regulation substantially burdens the individual's right to engage in an occupation not prohibited by law. If an individual meets this burden of proof, then a state agency must demonstrate "with clear and convincing evidence" that the regulation is necessary to fulfill the statute authorizing the regulation of the occupation.
The bill would also allow an individual to "bring an action for declaratory judgment or injunctive or other equitable relief" upon a finding that a contested regulation is substantially burdensome and unnecessary to fulfill statutory intent.
The bill would allow an affirmative defense for rule violations promulgated by potentially all state agencies involved in the regulation of occupations, including but not limited to: Alcoholic Beverage Commission; State Office of Administrative Hearings; Department of State Health Services; Commission on Environmental Quality; Department of Public Safety; and the Department of Licensing and Regulation.
Agencies would possibly have to hire additional legal or administrative staff and pay additional costs to handle a substantially increased caseload. There may also be significant revenue impacts on affected state agencies. In cases where the individual receives a favorable ruling the state agency would lose revenue, and in cases where the individual receives an unfavorable ruling the result would be a delay in revenue.
The Department of Public Safety, Texas Commission on Environmental Quality, Texas Workforce Commission and State Office of Administrative Hearings anticipate that any additional work resulting from passage of the bill could be absorbed with current resources.
The Texas Department of Licensing and Regulation notes the agency does not have sufficient information to estimate the bill's fiscal impact, but anticipates the bill could result in additional costs to defend the agency from what may be a significant number of challenges to the agency's enforcement actions. The agency also anticipates successful challenges would eliminate penalty revenues and unsuccessful challenges would delay the receipt of penalty revenues.
The Department of State Health Services also indicates that litigation costs associated with the bill are unknown but could be substantial.
The Alcoholic Beverage Commission notes the bill might not apply to the agency because it licenses business rather than occupations, and cannot estimate how many of its rules, policies and practices would be subject to challenges resulting from enactment of this legislation. The agency has estimated significant costs if the bill applied to the agency's licensing and permit functions.
Office of the Attorney General anticipates significant costs from the bill resulting from an assumed increase in the number of cases brought against agencies represented by the Office of the Attorney General. The agency estimates it would need an additional 18 attorneys and ten support staff to handle the increased caseload volume.
The bill would take effect September 1, 2013.
| Source Agencies: | 212 Office of Court Administration, Texas Judicial Council, 302 Office of the Attorney General, 320 Texas Workforce Commission, 360 State Office of Administrative Hearings, 405 Department of Public Safety, 452 Department of Licensing and Regulation, 458 Alcoholic Beverage Commission, 537 State Health Services, Department of, 582 Commission on Environmental Quality
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| LBB Staff: | UP, KJo, AI, JAW, SD, KKR, GG
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