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ANALYSIS
Sunset review provision
C.S.H.B. 2154 requires the State
Office of Administrative Hearings (SOAH) to be reviewed under the Texas
Sunset Act in 2027 and every twelfth year after 2027.
SOAH’s hourly rate and
anticipated hourly usage information
C.S.H.B. 2154 provides that an
hourly rate set by SOAH is to be set in an amount that sufficiently covers
SOAH’s full costs in providing services to a state agency, and makes related
conforming changes. The bill provides that the hourly rate should be used by
the legislature in determining SOAH’s legislative appropriations for the
biennium. The bill requires SOAH to develop and submit a legislative
appropriations request in accordance with anticipated hourly usage and cost
estimates for interagency contracts beginning with SOAH’s legislative
appropriations request for the 2018-2019 state fiscal biennium.
C.S.H.B. 2154 requires a state
agency that has entered into a contract with SOAH for the conduct of hearings
and alternative dispute resolution procedures for the agency, on a date
determined by SOAH before the beginning of each state fiscal biennium, to
submit to SOAH and the Legislative Budget Board information regarding the
agency's anticipated hourly usage of SOAH's services for each fiscal year of
that biennium.
Allows for quarterly
payments to SOAH
C.S.H.B. 2154 allows an agency
that enters into an interagency contract to pay SOAH for all services
provided to the agency to pay a fixed amount at the start of each fiscal
quarter of the biennium in lieu of paying a lump-sum amount at the start of
each fiscal year of the biennium, as required in current law. The bill specifies
this provision applies only to a contract entered into on or after the
effective date of the Act. The bill requires SOAH, for an interagency
contract under which a quarterly amount is paid by the referring agency to
SOAH, to track the agency's actual hourly usage of SOAH’s services during
each fiscal quarter and forecast, after each fiscal quarter, the agency's
anticipated hourly usage for the rest of the fiscal year. The bill requires
SOAH to report to the Legislative Budget Board any agency that fails to make
a timely payment under the contract. The bill makes related conforming and
technical changes.
Provides SOAH with more organizational
flexibility and additional information
C.S.H.B. 2154 removes statutory
requirements for SOAH to establish a natural resource conservation division,
utility division, and tax division, and makes conforming changes throughout
the bill. If SOAH issues a proposal for decision in a matter referred to SOAH
by a state agency, the bill requires the agency to send an electronic copy of
the agency's final decision or order in the matter to SOAH.
Tax hearings
C.S.H.B. 2154 modifies the
eligibility requirements for an administrative law judge to preside at a tax
hearing by removing the requirement that the administrative law judge must
have devoted at least 75 percent of the person’s legal practice to Texas
state tax law in at least five of the past 10 years before the date on which
the person begins employment in the tax division; and providing that the
judge have substantial experience in tax cases making the record suitable for
administrative review, rather than having substantial experience in tax cases
making the record suitable for administrative review or otherwise.
C.S.H.B. 2154 repeals the sunset
provision for SOAH’s tax division. The bill repeals the provision that
allows an administrative law judge to conduct hearings for other state
agencies if there are no other cases in the tax division and if the tax
division provides written notification to and receives prior approval from
the comptroller. The bill repeals the requirement that SOAH reimburse the
comptroller at an appropriate hourly rate for the time spent by the
administrative law judge on the case and the authority of the comptroller to
revoke approval for SOAH’s tax division judges to conduct hearings for other
state agencies at any time.
C.S.H.B. 2154 repeals the
requirement that the comptroller provide input to SOAH regarding the
comptroller's priorities and public policy needs, and a related provision
establishing that this information is specifically intended to assist SOAH in
providing efficient service and is not intended to impair SOAH’s independence
in conducting a hearing. The bill repeals a provision requiring SOAH, on
request of the comptroller, to provide the comptroller specified information regarding
the tax division.
Administrative license
revocation hearings
C.S.H.B. 2154 requires the
Department of Public Safety (DPS) and the chief administrative law judge of SOAH
to adopt and at least biennially update a memorandum of understanding (MOU) establishing
that SOAH has primary scheduling responsibility for an administrative license
revocation (ALR) hearing. The bill requires the adoption of an initial MOU
not later than September 1, 2016.
C.S.H.B. 2154 requires the MOU,
at a minimum, to set out the roles and responsibilities of SOAH and DPS in
scheduling an ALR hearing, including which agency is responsible for
scheduling each stage of a hearing; ensure that SOAH and DPS have timely
access to scheduling and continuance information; and provide for the
transfer of funding for DPS employees responsible for scheduling ALR hearings
from DPS to SOAH when SOAH assumes responsibility for initial scheduling of
hearings. The bill makes conforming changes that require an ALR hearing to
be rescheduled if, before the fifth day before the date scheduled for the hearing,
a request for a continuance is received in accordance with the MOU rather
than being received by DPS and specifies these changes take effect on
September 1, 2016. The bill requires SOAH and DPS to consult with the
Department of Information Resources and the Office of Court Administration of
the Texas Judicial System in developing any information technology solutions
needed to complete the transfer of scheduling responsibilities, as outlined
in the MOU.
Remanding default cases
C.S.H.B. 2154 authorizes a SOAH
administrative law judge, on making a finding that a party to a contested
case has defaulted under SOAH rules, to dismiss the case from SOAH’s docket
and remand it to the referring agency for informal disposition. The bill
authorizes the agency, after the case is dismissed and remanded, to
informally dispose of the case by applying its own rules or SOAH procedural
rules relating to default proceedings. The bill provides that this provision
does not apply to a contested case in which the SOAH administrative law judge
is authorized to render a final decision and specifies that this provision
applies only to a hearing conducted by SOAH on or after September 1, 2015.
Removes outdated
provisions related to utility hearings conducted by SOAH for the Public
Utility Commission
C.S.H.B. 2154 repeals the
requirements that hearings conducted for the Public Utility Commission (PUC)
by SOAH be held in hearing rooms provided by PUC, and that PUC provide SOAH’s
utility division access to its computer systems, databases, and library
resources.
C.S.H.B. 2154 repeals the
requirement that SOAH charge PUC a fixed annual fee rather than an hourly
rate for services rendered, and repeals provisions related to the fee,
including requiring the amount of the fee to be based on certain costs and
that SOAH and PUC negotiate the amount of the fixed fee biennially, subject
to the approval of the governor, to coincide with PUC's legislative
appropriations request. The bill repeals the provision that prohibits the
amount of the fee from being less than the amount appropriated to PUC in the
General Appropriations Act for payment to SOAH’s utility division to conduct
PUC hearings.
Repealers
The bill repeals the following
provisions of the Government Code:
·
Sections
2003.049(k) and (l)
·
Section
2003.101(c)
·
Section
2003.102
·
Section
2003.106
·
Section
2003.107
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INTRODUCED
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HOUSE COMMITTEE
SUBSTITUTE
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SECTION 1. Section 2001.058,
Government Code, is amended.
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SECTION 1. Same as introduced
version.
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SECTION 2. Section 2003.023,
Government Code, is amended.
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SECTION 2. Same as introduced
version.
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SECTION 3. Section 2003.024,
Government Code, is amended by amending Subsections (a), (a-2), (c), and
(d) and adding Subsections (a-3) and (a-4) to read as follows:
(a) If a state agency
referred matters to the office during any of the three most recent state
fiscal years for which complete information about the agency's hourly usage
is available and the costs to the office of conducting hearings and
alternative dispute resolution procedures for the state agency are not to
be paid by appropriations to the office during a state fiscal biennium, the
office and the agency shall enter into an interagency contract for the
biennium under which the referring agency pays the office either a
lump-sum amount[,] at the start of each fiscal year of the
biennium or a fixed amount at the start of each fiscal quarter of the
biennium for[, a lump-sum amount to
cover the costs of] conducting all hearings and procedures for
the agency during the fiscal year. The office shall report to the
Legislative Budget Board any agency that fails to make a timely payment
under the contract. The lump-sum or quarterly amount paid to the
office under the contract must be based on:
(1) an hourly rate that is
set by the office:
(A) in an amount that
sufficiently covers the office's full costs in conducting a hearing or procedure for the agency, including
costs for items listed in Subsection (c)(2); and
(B) in time for the
rate to be reviewed by the legislature, as part of the
legislature's review of the office's legislative appropriations request for
the biennium, in determining the office's legislative appropriations for
the biennium; and
(2) the anticipated hourly
usage of the office's services by the referring agency for each fiscal year
of the biennium, as estimated by the office under Subsection (a-1).
(a-2)
The office, for a contract entered into as provided by Subsection (a):
(1) may only require the referring agency to make an additional
payment to the office if the agency's actual hourly usage of the office's
services is greater than the agency's anticipated hourly usage of the
office's services as estimated under Subsection (a-1) for a fiscal year by
more than 10 percent; and
(2) is only required to reimburse the referring agency if the
agency's actual hourly usage of the office's services is less than the
agency's anticipated hourly usage of the office's services as estimated
under Subsection (a-1) for a fiscal year by more than 10 percent.
(a-3) The office, for a
contract entered into as provided under Subsection (a) under which a
quarterly amount is paid by the referring agency to the office, shall:
(1) track the agency's
actual hourly usage of the office's services during each fiscal quarter and
forecast, after each fiscal quarter, the agency's anticipated hourly usage
for the rest of the fiscal year; and
(2) make adjustments to the quarterly amount if the office
forecasts under Subdivision (1) that the agency's actual hourly usage of
the office's services will differ from anticipated hourly usage of the
office's services estimated under Subsection (a-1) by 10 percent or more at
the end of the fiscal year.
(a-4) If a state
agency did not refer matters to the office during any of the three state fiscal
years preceding a state fiscal biennium for which complete information
about the agency's hourly usage would have been available and did not
provide information to the office sufficient for the office to reasonably
and timely estimate anticipated usage and enter into a contract with the
agency before the start of the state fiscal biennium, and the costs to the
office of conducting hearings and alternative dispute resolution procedures
for the state agency are not paid by appropriations to the office for the
state fiscal biennium, the referring agency shall pay the office the costs
of conducting hearings or procedures for the agency based on the hourly
rate that is set by the office under Subsection (a) and on the agency's
actual usage of the office's services.
(c) Each state fiscal
biennium, the office as part of its legislative appropriation request shall
file:
(1) information, as
estimated under Subsection (a-1), related to the anticipated hourly usage
of each state agency that refers matters to the office for which the costs
of hearings and alternative dispute resolution procedures are anticipated
to be paid by appropriations to the office; and
(2) an estimate of its
hourly costs in conducting each type of hearing or dispute resolution
procedure[. The office shall estimate the hourly cost] based on the
average cost per hour during the preceding state fiscal year of:
(A) the salaries of its
administrative law judges;
(B) the travel expenses,
hearing costs, and telephone charges directly related to the conduct of a
hearing or procedure; and
(C) the administrative costs
of the office, including docketing costs [and the administrative costs
of the division of the office that conducts the hearing or procedure].
(d) This section does not
apply to hearings conducted:
(1) under Section
2003.047 or 2003.049 [by the natural resource conservation division
or the utility division]; or
(2) under the administrative
license revocation program.
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SECTION 3. Section 2003.024,
Government Code, is amended by amending Subsections (a), (a-2), (c), and
(d) and adding Subsection (a-3) to read as follows:
(a) If a state agency
referred matters to the office during any of the three most recent state
fiscal years for which complete information about the agency's hourly usage
is available and the costs to the office of conducting hearings and
alternative dispute resolution procedures for the state agency are not to
be paid by appropriations to the office during a state fiscal biennium, the
office and the agency shall enter into an interagency contract for the
biennium under which the referring agency pays the office either a
lump-sum amount[,] at the start of each fiscal year of the
biennium or a fixed amount at the start of each fiscal quarter of the biennium
for all services provided to the agency[, a lump-sum amount to cover the costs of
conducting all hearings and procedures] during the fiscal year. The
office shall report to the Legislative Budget Board any agency that fails
to make a timely payment under the contract. The lump-sum or
quarterly amount paid to the office under the contract must be based
on:
(1) an hourly rate that is
set by the office:
(A) in an amount that
sufficiently covers the office's full costs in providing services to the agency, including costs for items
listed in Subsection (c)(2); and
(B) in time for the
rate to be reviewed by the legislature, as part of the
legislature's review of the office's legislative appropriations request for
the biennium, in determining the office's legislative appropriations for
the biennium; and
(2) the anticipated hourly
usage of the office's services by the referring agency for each fiscal year
of the biennium, as estimated by the office under Subsection (a-1).
(a-2) The office, for a
contract entered into as provided by Subsection (a) under which a quarterly
amount is paid by the referring agency to the office, shall:
(1) track the agency's
actual hourly usage of the office's services during each fiscal quarter;
and
(2) forecast, after each
fiscal quarter, the agency's anticipated hourly usage for the rest of the
fiscal year.
(a-3) If a state
agency did not refer matters to the office during any of the three state
fiscal years preceding a state fiscal biennium for which complete information
about the agency's hourly usage would have been available and did not
provide information to the office sufficient for the office to reasonably
and timely estimate anticipated usage and enter into a contract with the
agency before the start of the state fiscal biennium, and the costs to the
office of conducting hearings and alternative dispute resolution procedures
for the state agency are not paid by appropriations to the office for the
state fiscal biennium, the referring agency shall pay the office the costs
of conducting hearings or procedures for the agency based on the hourly
rate that is set by the office under Subsection (a) and on the agency's
actual usage of the office's services.
(c) Each state fiscal
biennium, the office as part of its legislative appropriation request shall
file:
(1) information, as
estimated under Subsection (a-1), related to the anticipated hourly usage
of each state agency that refers matters to the office for which the costs
of hearings and alternative dispute resolution procedures are anticipated
to be paid by appropriations to the office; and
(2) an estimate of its
hourly costs in conducting each type of hearing or dispute resolution
procedure[. The office shall estimate the hourly cost] based on the
average cost per hour during the preceding state fiscal year of:
(A) the salaries of its
administrative law judges;
(B) the travel expenses,
hearing costs, and telephone charges directly related to the conduct of a
hearing or procedure; and
(C) the administrative costs
of the office, including docketing costs [and the administrative costs
of the division of the office that conducts the hearing or procedure].
(d) This section does not
apply to hearings conducted:
(1) under Section
2003.047 or 2003.049 [by the natural resource conservation division
or the utility division]; or
(2) under the administrative
license revocation program.
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SECTION 4. Subchapter B,
Chapter 2003, Government Code, is amended.
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SECTION 4. Same as introduced
version.
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SECTION 5. Section 2003.0421(c),
Government Code, is amended.
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SECTION 5. Same as introduced
version.
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SECTION 6. The heading to
Section 2003.047, Government Code, is amended.
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SECTION 6. Same as introduced
version.
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SECTION 7. Sections
2003.047(a), (b), and (c), Government Code, are amended.
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SECTION 7. Same as introduced
version.
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SECTION 8. Section 2003.048,
Government Code, is amended.
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SECTION 8. Same as introduced
version.
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SECTION 9. The heading to
Section 2003.049, Government Code, is amended.
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SECTION 9. Same as introduced
version.
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SECTION 10. Sections
2003.049(a), (b), (c), (k), and (l), Government Code, are amended to read
as follows:
(a) The office shall [establish
a utility division to] perform [the] contested case hearings for
the Public Utility Commission of Texas as prescribed by the Public Utility
Regulatory Act of 1995 and other applicable law.
(b) The office [utility
division] shall conduct hearings relating to contested cases before the
commission, other than a hearing conducted by one or more commissioners.
The commission by rule may delegate the responsibility to hear any other
matter before the commission if consistent with the duties and
responsibilities of the office [division].
(c) [Only an
administrative law judge in the utility division may conduct a hearing on
behalf of the commission. An administrative law judge in the utility
division may conduct hearings for other state agencies as time allows.]
The office may [transfer an administrative law judge into the division
on a temporary or permanent basis and may] contract with qualified
individuals to serve as temporary administrative law judges as necessary.
(k)
Hearings conducted for the commission by the office shall be held in
hearing rooms provided by the commission. The commission shall also
provide the office [utility division] access to its computer
systems, databases, and library resources.
(l)
The office shall charge the commission a fixed annual fee rather than an
hourly rate for services rendered [by the utility division] to the
commission. The amount of the fee may not be less than the amount
appropriated to the commission in the General Appropriations Act for
payment to the office [utility division] to conduct
commission hearings. The amount of the fee shall be based on the costs of
conducting the hearings, the costs of travel expenses and telephone charges
directly related to the hearings, docketing costs, and other applicable
administrative costs of the office [including the administrative costs
of the utility division]. The office and the commission shall
negotiate the amount of the fixed fee biennially, subject to the approval
of the governor, to coincide with the commission's legislative
appropriations request.
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SECTION 10. Sections
2003.049(a), (b), and (c), Government Code, are amended to read as follows:
(a) The office shall [establish
a utility division to] perform [the] contested case hearings for
the Public Utility Commission of Texas as prescribed by the Public Utility
Regulatory Act of 1995 and other applicable law.
(b) The office [utility
division] shall conduct hearings relating to contested cases before the
commission, other than a hearing conducted by one or more commissioners.
The commission by rule may delegate the responsibility to hear any other
matter before the commission if consistent with the duties and
responsibilities of the office [division].
(c) [Only an
administrative law judge in the utility division may conduct a hearing on
behalf of the commission. An administrative law judge in the utility division
may conduct hearings for other state agencies as time allows.] The
office may [transfer an administrative law judge into the division on a
temporary or permanent basis and may] contract with qualified
individuals to serve as temporary administrative law judges as necessary.
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SECTION 11. Section 2003.051,
Government Code, is amended.
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SECTION 11. Same as
introduced version.
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SECTION 12. The heading to
Subchapter D, Chapter 2003, Government Code, is amended.
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SECTION 12. Same as
introduced version.
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SECTION 13. The heading to
Section 2003.101, Government Code, is amended.
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SECTION 13. Same as
introduced version.
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SECTION 14. Sections
2003.101(a), (b), (d), and (i), Government Code, are amended.
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SECTION 14. Same as
introduced version.
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SECTION 15. Sections
2003.103(a) and (b), Government Code, are amended.
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SECTION 15. Same as
introduced version.
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SECTION 16. The heading to
Section 2003.104, Government Code, is amended.
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SECTION 16. Same as
introduced version.
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SECTION 17. The heading to
Section 2003.105, Government Code, is amended.
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SECTION 17. Same as
introduced version.
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SECTION 18. Section 2003.109,
Government Code, is amended.
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SECTION 18. Same as
introduced version.
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SECTION 19. The heading to
Section 111.00455, Tax Code, is amended.
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SECTION 19. Same as
introduced version.
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SECTION 20. Sections
111.00455(a) and (c), Tax Code, are amended.
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SECTION 20. Same as
introduced version.
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SECTION 21. Section
524.032(b), Transportation Code, is amended.
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SECTION 21. Same as
introduced version.
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SECTION 22. Section 524.033,
Transportation Code, is amended.
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SECTION 22. Same as
introduced version.
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SECTION 23. Section
14.052(a), Utilities Code, is amended.
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SECTION 23. Same as
introduced version.
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SECTION 24. Sections
14.053(a) and (b), Utilities Code, are amended.
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SECTION 24. Same as
introduced version.
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SECTION 25. Sections
102.006(a), (b), (c), and (e), Utilities Code, are amended.
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SECTION 25. Same as
introduced version.
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SECTION 26. The following
provisions of the Government Code are repealed:
(1) Section 2003.101(c);
(2) Section 2003.102;
(3) Section 2003.106; and
(4) Section 2003.107.
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SECTION 26. The following
provisions of the Government Code are repealed:
(1) Sections 2003.049(k) and (l);
(2) Section 2003.101(c);
(3) Section 2003.102;
(4) Section 2003.106; and
(5) Section 2003.107.
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SECTION 27. (a) Section
2001.058(d-1), Government Code, as added by this Act, applies only to a case referred to the State Office of
Administrative Hearings on or after September 1, 2015.
(b) The State Office of
Administrative Hearings shall develop and submit a legislative
appropriations request in accordance with Section 2003.024, Government
Code, as amended by this Act, beginning with the office's legislative
appropriations request for the 2018-2019 state fiscal biennium.
(c) Section 2003.024,
Government Code, as amended by this Act, applies only to a contract entered
into on or after the effective date of this Act. A contract entered into
before that date is governed by the law in effect immediately before the
effective date of this Act, and the former law is continued in effect for
that purpose.
(d) Not later than September
1, 2016, the Texas Department of
Transportation and the chief administrative law judge of the State
Office of Administrative Hearings shall adopt an initial memorandum of
understanding under Section 524.033(c), Transportation Code, as added by
this Act.
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SECTION 27. (a) Section
2001.058(d-1), Government Code, as added by this Act, applies only to a hearing conducted by the State Office of
Administrative Hearings on or after September 1, 2015.
(b) The State Office of
Administrative Hearings shall develop and submit a legislative
appropriations request in accordance with Section 2003.024, Government
Code, as amended by this Act, beginning with the office's legislative
appropriations request for the 2018-2019 state fiscal biennium.
(c) Section 2003.024,
Government Code, as amended by this Act, applies only to a contract entered
into on or after the effective date of this Act. A contract entered into
before that date is governed by the law in effect immediately before the
effective date of this Act, and the former law is continued in effect for
that purpose.
(d) Not later than September
1, 2016, the Department of Public Safety
and the chief administrative law judge of the State Office of
Administrative Hearings shall adopt an initial memorandum of understanding
under Section 524.033(c), Transportation Code, as added by this Act.
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SECTION 28. (a) Except as
provided by Subsection (b) of this section, this Act takes effect September
1, 2015.
(b) Section 524.032(b),
Transportation Code, as amended by this Act, takes effect September 1,
2016.
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SECTION 28. Same as
introduced version.
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