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AN ACT
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relating to the functions and operation of the State Office of |
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Administrative Hearings. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 2001.058, Government Code, is amended by |
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adding Subsection (d-1) to read as follows: |
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(d-1) On making a finding that a party to a contested case |
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has defaulted under the rules of the State Office of Administrative |
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Hearings, the administrative law judge may dismiss the case from |
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the docket of the State Office of Administrative Hearings and |
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remand it to the referring agency for informal disposition under |
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Section 2001.056. After the case is dismissed and remanded, the |
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agency may informally dispose of the case by applying its own rules |
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or the procedural rules of the State Office of Administrative |
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Hearings relating to default proceedings. This subsection does not |
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apply to a contested case in which the administrative law judge is |
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authorized to render a final decision. |
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SECTION 2. Section 2003.023, Government Code, is amended to |
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read as follows: |
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Sec. 2003.023. SUNSET PROVISION. The State Office of |
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Administrative Hearings is subject to review under Chapter 325 |
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(Texas Sunset Act), but is not abolished under that chapter. The |
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office shall be reviewed during the periods in which state agencies |
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abolished in 2027 [2015] and every 12th year after 2027 [2015] are |
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reviewed. |
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SECTION 3. Section 2003.024, Government Code, is amended by |
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amending Subsections (a), (a-2), (c), and (d) and adding Subsection |
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(a-3) to read as follows: |
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(a) If a state agency referred matters to the office during |
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any of the three most recent state fiscal years for which complete |
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information about the agency's hourly usage is available and the |
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costs to the office of conducting hearings and alternative dispute |
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resolution procedures for the state agency are not to be paid by |
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appropriations to the office during a state fiscal biennium, the |
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office and the agency shall enter into an interagency contract for |
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the biennium under which the referring agency pays the office |
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either a lump-sum amount[,] at the start of each fiscal year of the |
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biennium or a fixed amount at the start of each fiscal quarter of |
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the biennium for all services provided to the agency[, a lump-sum
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amount to cover the costs of conducting all hearings and
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procedures] during the fiscal year. The office shall report to the |
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Legislative Budget Board any agency that fails to make a timely |
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payment under the contract. The lump-sum or quarterly amount paid |
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to the office under the contract must be based on: |
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(1) an hourly rate that is set by the office: |
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(A) in an amount that sufficiently covers the |
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office's full costs in providing services to the agency, including |
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costs for items listed in Subsection (c)(2); and |
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(B) in time for the rate to be reviewed by the |
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legislature, as part of the legislature's review of the office's |
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legislative appropriations request for the biennium, in |
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determining the office's legislative appropriations for the |
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biennium; and |
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(2) the anticipated hourly usage of the office's |
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services by the referring agency for each fiscal year of the |
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biennium, as estimated by the office under Subsection (a-1). |
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(a-2) The office, for a contract entered into as provided by |
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Subsection (a) under which a quarterly amount is paid by the |
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referring agency to the office, shall: |
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(1) track the agency's actual hourly usage of the |
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office's services during each fiscal quarter; and |
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(2) forecast, after each fiscal quarter, the agency's |
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anticipated hourly usage for the rest of the fiscal year. |
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(a-3) If a state agency did not refer matters to the office |
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during any of the three state fiscal years preceding a state fiscal |
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biennium for which complete information about the agency's hourly |
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usage would have been available and did not provide information to |
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the office sufficient for the office to reasonably and timely |
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estimate anticipated usage and enter into a contract with the |
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agency before the start of the state fiscal biennium, and the costs |
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to the office of conducting hearings and alternative dispute |
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resolution procedures for the state agency are not paid by |
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appropriations to the office for the state fiscal biennium, the |
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referring agency shall pay the office the costs of conducting |
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hearings or procedures for the agency based on the hourly rate that |
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is set by the office under Subsection (a) and on the agency's actual |
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usage of the office's services. |
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(c) Each state fiscal biennium, the office as part of its |
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legislative appropriation request shall file: |
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(1) information, as estimated under Subsection (a-1), |
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related to the anticipated hourly usage of each state agency that |
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refers matters to the office for which the costs of hearings and |
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alternative dispute resolution procedures are anticipated to be |
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paid by appropriations to the office; and |
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(2) an estimate of its hourly costs in conducting each |
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type of hearing or dispute resolution procedure[. The office shall
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estimate the hourly cost] based on the average cost per hour during |
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the preceding state fiscal year of: |
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(A) the salaries of its administrative law |
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judges; |
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(B) the travel expenses, hearing costs, and |
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telephone charges directly related to the conduct of a hearing or |
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procedure; and |
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(C) the administrative costs of the office, |
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including docketing costs [and the administrative costs of the
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division of the office that conducts the hearing or procedure]. |
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(d) This section does not apply to hearings conducted: |
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(1) under Section 2003.047 or 2003.049 [by the natural
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resource conservation division or the utility division]; or |
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(2) under the administrative license revocation |
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program. |
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SECTION 4. Subchapter B, Chapter 2003, Government Code, is |
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amended by adding Section 2003.025 to read as follows: |
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Sec. 2003.025. REQUIRED INFORMATION REGARDING ANTICIPATED |
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HOURLY USAGE. (a) This section applies to a state agency that has |
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entered into a contract with the office for the conduct of hearings |
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and alternative dispute resolution procedures for the agency, |
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including a contract under Section 2003.024, 2003.048, 2003.049, or |
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2003.105, during any of the three most recent state fiscal years. |
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(b) On a date determined by the office before the beginning |
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of each state fiscal biennium, a state agency to which this section |
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applies shall submit to the office and the Legislative Budget Board |
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information regarding the agency's anticipated hourly usage of the |
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office's services for each fiscal year of that biennium. |
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SECTION 5. Section 2003.0421(c), Government Code, is |
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amended to read as follows: |
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(c) This section applies to any contested case hearing |
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conducted by the office, except hearings conducted on behalf of the |
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Texas [Natural Resource Conservation] Commission on Environmental |
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Quality or the Public Utility Commission of Texas which are |
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governed by Sections 2003.047 and 2003.049. |
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SECTION 6. The heading to Section 2003.047, Government |
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Code, is amended to read as follows: |
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Sec. 2003.047. HEARINGS FOR TEXAS COMMISSION ON |
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ENVIRONMENTAL QUALITY [NATURAL RESOURCE CONSERVATION DIVISION]. |
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SECTION 7. Sections 2003.047(a), (b), and (c), Government |
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Code, are amended to read as follows: |
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(a) The office shall [establish a natural resource
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conservation division to] perform [the] contested case hearings for |
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the Texas [Natural Resource Conservation] Commission on |
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Environmental Quality. |
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(b) The office [division] shall conduct hearings relating |
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to contested cases before the commission, other than a hearing |
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conducted by one or more commissioners. The commission by rule may |
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delegate to the office [division] the responsibility to hear any |
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other matter before the commission if consistent with the |
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responsibilities of the office [division]. |
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(c) [Only an administrative law judge in the division may
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conduct a hearing on behalf of the commission. An administrative
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law judge in the division may conduct hearings for other state
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agencies as time allows.] The office may [transfer an
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administrative law judge to the division on a permanent or
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temporary basis and may] contract with qualified individuals to |
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serve as temporary administrative law judges as necessary. |
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SECTION 8. Section 2003.048, Government Code, is amended to |
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read as follows: |
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Sec. 2003.048. TEXAS [NATURAL RESOURCE CONSERVATION] |
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COMMISSION ON ENVIRONMENTAL QUALITY HEARINGS FEE. The office shall |
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charge the Texas [Natural Resource Conservation] Commission on |
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Environmental Quality a fixed annual fee rather than an hourly rate |
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for services rendered by the office to the commission. The amount |
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of the fee may not be less than the amount appropriated to the Texas |
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[Natural Resource Conservation] Commission on Environmental |
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Quality in the General Appropriations Act for payment to the office |
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[natural resource conservation division] to conduct commission |
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hearings. The amount of the fee shall be based on the costs of |
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conducting the hearings, the costs of travel expenses and telephone |
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charges directly related to the hearings, docketing costs, and |
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other applicable administrative costs of the office [including the
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administrative costs of the natural resource conservation
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division]. The office and the Texas [Natural Resource
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Conservation] Commission on Environmental Quality shall negotiate |
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the amount of the fixed fee biennially, subject to the approval of |
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the governor, to coincide with the commission's legislative |
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appropriations request. |
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SECTION 9. The heading to Section 2003.049, Government |
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Code, is amended to read as follows: |
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Sec. 2003.049. UTILITY HEARINGS [DIVISION]. |
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SECTION 10. Sections 2003.049(a), (b), and (c), Government |
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Code, are amended to read as follows: |
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(a) The office shall [establish a utility division to] |
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perform [the] contested case hearings for the Public Utility |
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Commission of Texas as prescribed by the Public Utility Regulatory |
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Act of 1995 and other applicable law. |
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(b) The office [utility division] shall conduct hearings |
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relating to contested cases before the commission, other than a |
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hearing conducted by one or more commissioners. The commission by |
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rule may delegate the responsibility to hear any other matter |
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before the commission if consistent with the duties and |
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responsibilities of the office [division]. |
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(c) [Only an administrative law judge in the utility
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division may conduct a hearing on behalf of the commission. An
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administrative law judge in the utility division may conduct
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hearings for other state agencies as time allows.] The office may |
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[transfer an administrative law judge into the division on a
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temporary or permanent basis and may] contract with qualified |
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individuals to serve as temporary administrative law judges as |
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necessary. |
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SECTION 11. Section 2003.051, Government Code, is amended |
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to read as follows: |
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Sec. 2003.051. ROLE OF REFERRING AGENCY. (a) Except in |
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connection with interim appeals of orders or questions certified to |
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an agency by an administrative law judge, as permitted by law, a |
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state agency that has referred a matter to the office in which the |
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office will conduct a hearing may not take any adjudicative action |
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relating to the matter until the office has issued its proposal for |
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decision or otherwise concluded its involvement in the matter. The |
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state agency may exercise its advocacy rights in the matter before |
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the office in the same manner as any other party. |
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(b) If the office issues a proposal for decision in a matter |
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referred to the office by a state agency, the referring agency shall |
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send to the office an electronic copy of the agency's final decision |
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or order in the matter. |
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SECTION 12. The heading to Subchapter D, Chapter 2003, |
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Government Code, is amended to read as follows: |
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SUBCHAPTER D. TAX HEARINGS [DIVISION] |
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SECTION 13. The heading to Section 2003.101, Government |
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Code, is amended to read as follows: |
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Sec. 2003.101. TAX HEARINGS [DIVISION]. |
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SECTION 14. Sections 2003.101(a), (b), (d), and (i), |
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Government Code, are amended to read as follows: |
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(a) The office shall [establish a tax division to] conduct |
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hearings relating to contested cases involving the collection, |
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receipt, administration, and enforcement of taxes, fees, and other |
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amounts as prescribed by Section 111.00455, Tax Code. |
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(b) An administrative law judge who presides at a [in the] |
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tax hearing [division] is classified as a "master administrative |
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law judge II." Section 2003.0411 does not apply to this section. |
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(d) To be eligible to preside at a tax [division] hearing, |
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an administrative law judge, including a temporary administrative |
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law judge contracted with under Section 2003.043, must: |
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(1) be a United States citizen; |
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(2) be an attorney in good standing with the State Bar |
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of Texas; |
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(3) have been licensed in this state to practice law |
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for at least seven years; and |
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(4) have substantial experience in tax cases in making |
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the record suitable for administrative review [or otherwise; and
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[(5)
have devoted at least 75 percent of the person's
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legal practice to Texas state tax law in at least five of the past 10
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years before the date on which the person begins employment in the
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tax division]. |
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(i) For each hearing conducted under this section, an |
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administrative law judge [in the tax division] shall issue a |
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proposal for decision that includes findings of fact and |
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conclusions of law. In addition, the proposal for decision must |
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include the legal reasoning and other analysis considered by the |
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judge in reaching the decision. Each finding of fact or conclusion |
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of law made by the judge must be: |
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(1) independent and impartial; and |
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(2) based on state law and the evidence presented at |
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the hearing. |
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SECTION 15. Sections 2003.103(a) and (b), Government Code, |
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are amended to read as follows: |
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(a) The office [tax division] shall conduct all hearings |
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under this subchapter in a timely manner. |
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(b) The office [tax division] shall use every reasonable |
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means to expedite a case under this subchapter when the comptroller |
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requests that the office [division] expedite the case. |
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SECTION 16. The heading to Section 2003.104, Government |
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Code, is amended to read as follows: |
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Sec. 2003.104. CONFIDENTIALITY OF TAX HEARING [DIVISION] |
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INFORMATION. |
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SECTION 17. The heading to Section 2003.105, Government |
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Code, is amended to read as follows: |
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Sec. 2003.105. TAX [DIVISION] HEARINGS FEE. |
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SECTION 18. Section 2003.109, Government Code, is amended |
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to read as follows: |
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Sec. 2003.109. RULES; EARLY REFERRAL. (a) The comptroller |
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may adopt rules to provide for the referral to the office [tax
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division] of issues related to a case described by Section |
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111.00455, Tax Code, to resolve a procedural or other preliminary |
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dispute between the comptroller and a party. |
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(b) After a referral under this section, the office [tax
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division] shall docket the case and assign an administrative law |
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judge under Section 2003.101. If additional proceedings are |
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required after the consideration of the procedural or other |
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preliminary dispute, the office [tax division] shall appoint the |
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same administrative law judge to hear the case. |
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SECTION 19. The heading to Section 111.00455, Tax Code, is |
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amended to read as follows: |
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Sec. 111.00455. CONTESTED CASES CONDUCTED BY [TAX DIVISION
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OF] STATE OFFICE OF ADMINISTRATIVE HEARINGS. |
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SECTION 20. Sections 111.00455(a) and (c), Tax Code, are |
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amended to read as follows: |
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(a) The [tax division of the] State Office of Administrative |
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Hearings shall conduct any contested case hearing as provided by |
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Section 2003.101, Government Code, in relation to the collection, |
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receipt, administration, and enforcement of: |
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(1) a tax imposed under this title; and |
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(2) any other tax, fee, or other amount that the |
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comptroller is required to collect, receive, administer, or enforce |
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under a law not included in this title. |
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(c) A reference in law to the comptroller that relates to |
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the performance of a contested case hearing described by Subsection |
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(a) means the [tax division of the] State Office of Administrative |
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Hearings. |
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SECTION 21. Section 524.032(b), Transportation Code, is |
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amended to read as follows: |
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(b) A hearing shall be rescheduled if, before the fifth day |
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before the date scheduled for the hearing, [the department
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receives] a request for a continuance from the person who requested |
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the hearing is received in accordance with the memorandum of |
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understanding adopted under Section 524.033(c). Unless both |
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parties agree otherwise, the hearing shall be rescheduled for a |
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date not earlier than the fifth day after the date [the department
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receives] the request for [the] continuance is received. |
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SECTION 22. Section 524.033, Transportation Code, is |
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amended by adding Subsections (c) and (d) to read as follows: |
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(c) The department and chief administrative law judge of the |
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State Office of Administrative Hearings shall adopt and at least |
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biennially update a memorandum of understanding establishing that |
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the State Office of Administrative Hearings has primary scheduling |
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responsibility for a hearing under this subchapter. The memorandum |
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of understanding must, at a minimum: |
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(1) set out the roles and responsibilities of the |
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State Office of Administrative Hearings and the department in |
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scheduling a hearing under this subchapter, including which agency |
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is responsible for scheduling each stage of a hearing; |
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(2) ensure that the State Office of Administrative |
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Hearings and the department have timely access to scheduling and |
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continuance information; and |
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(3) provide for the transfer of funding for department |
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employees responsible for scheduling hearings under this |
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subchapter from the department to the State Office of |
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Administrative Hearings when the State Office of Administrative |
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Hearings assumes responsibility for initial scheduling of hearings |
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under this subchapter. |
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(d) The State Office of Administrative Hearings and the |
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department shall consult with the Department of Information |
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Resources and the Office of Court Administration of the Texas |
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Judicial System in developing any information technology solutions |
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needed to complete the transfer of scheduling responsibilities, as |
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outlined in the memorandum of understanding adopted under |
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Subsection (c). |
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SECTION 23. Section 14.052(a), Utilities Code, is amended |
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to read as follows: |
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(a) The commission shall adopt and enforce rules governing |
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practice and procedure before the commission and, as applicable, |
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practice and procedure before the [utility division of the] State |
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Office of Administrative Hearings. |
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SECTION 24. Sections 14.053(a) and (b), Utilities Code, are |
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amended to read as follows: |
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(a) The [utility division of the] State Office of |
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Administrative Hearings shall conduct each hearing in a contested |
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case that is not conducted by one or more commissioners. |
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(b) The commission may delegate to the [utility division of
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the] State Office of Administrative Hearings the authority to make |
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a final decision and to issue findings of fact, conclusions of law, |
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and other necessary orders in a proceeding in which there is not a |
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contested issue of fact or law. |
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SECTION 25. Sections 102.006(a), (b), (c), and (e), |
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Utilities Code, are amended to read as follows: |
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(a) The railroad commission by rule shall provide for |
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administrative hearings in contested cases to be conducted by one |
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or more members of the railroad commission, by railroad commission |
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hearings examiners, or by the [utility division of the] State |
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Office of Administrative Hearings. The rules must provide for a |
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railroad commission hearings examiner or the [utility division of
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the] State Office of Administrative Hearings to conduct each |
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hearing in a contested case that is not conducted by one or more |
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members of the railroad commission. A hearing must be conducted in |
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accordance with the rules and procedures adopted by the railroad |
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commission. |
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(b) The railroad commission may delegate to a railroad |
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commission hearings examiner or to the [utility division of the] |
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State Office of Administrative Hearings the authority to make a |
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final decision and to issue findings of fact, conclusions of law, |
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and other necessary orders in a proceeding in which there is not a |
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contested issue of fact or law. |
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(c) The railroad commission by rule shall define the |
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procedures by which it delegates final decision-making authority |
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under Subsection (b) to a railroad commission hearings examiner or |
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to the [utility division of the] State Office of Administrative |
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Hearings. |
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(e) The State Office of Administrative Hearings shall |
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charge the railroad commission a fixed annual rate for hearings |
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conducted by the office under this section only if the legislature |
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appropriates money for that purpose. If the legislature does not |
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appropriate money for the payment of a fixed annual rate under this |
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section, the State Office of Administrative Hearings shall charge |
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the railroad commission an hourly rate set by the office under |
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Section 2003.024(a), Government Code, [of not more than $90 per
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hour] for hearings conducted by the office under this section. |
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SECTION 26. The following provisions of the Government Code |
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are repealed: |
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(1) Sections 2003.049(k) and (l); |
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(2) Section 2003.101(c); |
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(3) Section 2003.102; |
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(4) Section 2003.106; and |
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(5) Section 2003.107. |
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SECTION 27. (a) Section 2001.058(d-1), Government Code, as |
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added by this Act, applies only to a hearing conducted by the State |
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Office of Administrative Hearings on or after September 1, 2015. |
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(b) The State Office of Administrative Hearings shall |
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develop and submit a legislative appropriations request in |
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accordance with Section 2003.024, Government Code, as amended by |
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this Act, beginning with the office's legislative appropriations |
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request for the 2018-2019 state fiscal biennium. |
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(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. |
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(d) Not later than September 1, 2016, the Department of |
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Public Safety and the chief administrative law judge of the State |
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Office of Administrative Hearings shall adopt an initial memorandum |
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of understanding under Section 524.033(c), Transportation Code, as |
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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. |
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(b) Section 524.032(b), Transportation Code, as amended by |
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this Act, takes effect September 1, 2016. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 2154 was passed by the House on April |
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29, 2015, by the following vote: Yeas 136, Nays 3, 1 present, not |
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voting; and that the House concurred in Senate amendments to H.B. |
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No. 2154 on May 19, 2015, by the following vote: Yeas 139, Nays 5, |
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2 present, not voting. |
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______________________________ |
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Chief Clerk of the House |
|
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I certify that H.B. No. 2154 was passed by the Senate, with |
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amendments, on May 13, 2015, by the following vote: Yeas 31, Nays |
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0. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: __________________ |
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Date |
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__________________ |
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Governor |