By: Estes, Watson  S.B. No. 1267
         (In the Senate - Filed March 11, 2015; March 17, 2015, read
  first time and referred to Committee on State Affairs;
  April 29, 2015, reported adversely, with favorable Committee
  Substitute by the following vote:  Yeas 9, Nays 0; April 29, 2015,
  sent to printer.)
Click here to see the committee vote
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 1267 By:  Estes
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to contested cases conducted under the Administrative
  Procedure Act.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 2001.052, Government Code, is amended to
  read as follows:
         Sec. 2001.052.  CONTENTS OF NOTICE. (a)  Notice of a
  hearing in a contested case must include:
               (1)  a statement of the time, place, and nature of the
  hearing;
               (2)  a statement of the legal authority and
  jurisdiction under which the hearing is to be held;
               (3)  a reference to the particular sections of the
  statutes and rules involved; and
               (4)  a short, plain statement of the factual matters
  asserted.
         (b)  If a state agency or other party is unable to state
  factual matters in detail at the time notice under this section is
  served, an initial notice may be limited to a statement of the
  issues involved. On timely written application, a more definite
  and detailed statement of the facts shall be furnished not less than
  seven [three] days before the date set for the hearing. In a
  proceeding in which the state agency has the burden of proof, a
  state agency that intends to rely on a section of a statute or rule
  not previously referenced in the notice of hearing must amend the
  notice to refer to the section of the statute or rule not later than
  the seventh day before the date set for the hearing.  This
  subsection does not prohibit the state agency from filing an
  amendment during the hearing of a contested case provided the
  opposing party is granted a continuance of at least seven days to
  prepare its case on request of the opposing party.
         (c)  In a suit for judicial review of a final decision or
  order of a state agency in a contested case, the state agency's
  failure to comply with Subsection (a)(3) or (b) shall constitute
  prejudice to the substantial rights of the appellant under Section
  2001.174(2) unless the court finds that the failure did not
  unfairly surprise and prejudice the appellant or that the appellant
  waived the appellant's rights.
         SECTION 2.  Section 2001.054, Government Code, is amended by
  adding Subsections (c-1) and (e) to read as follows:
         (c-1)  A state agency that has been granted the power to
  summarily suspend a license under another statute may determine
  that an imminent peril to the public health, safety, or welfare
  requires emergency action and may issue an order to summarily
  suspend the license holder's license pending proceedings for
  revocation or other action, provided that the agency incorporates a
  factual and legal basis establishing that imminent peril in the
  order. Unless expressly provided otherwise by another statute, the
  agency shall initiate the proceedings for revocation or other
  action not later than the 30th day after the date the summary
  suspension order is signed.  The proceedings must be promptly
  determined, and if the proceedings are not initiated before the
  30th day after the date the order is signed, the license holder may
  appeal the summary suspension order to a Travis County district
  court.  This subsection does not grant any state agency the power to
  suspend a license without notice and an opportunity for a hearing.
         (e)  In a suit for judicial review of a final decision or
  order of a state agency brought by a license holder, the agency's
  failure to comply with Subsection (c) shall constitute prejudice to
  the substantial rights of the license holder under Section
  2001.174(2) unless the court determines that the failure did not
  unfairly surprise and prejudice the license holder.
         SECTION 3.  Sections 2001.141(a), (b), and (e), Government
  Code, are amended to read as follows:
         (a)  A decision or order of a state agency that may become
  final under Section 2001.144 that is adverse to any [a] party in a
  contested case must be in writing and signed by a person authorized
  by the agency to sign the agency decision or order [stated in the
  record].
         (b)  A decision or order that may become final under Section
  2001.144 must include findings of fact and conclusions of law,
  separately stated.
         (e)  If a party submits under a state agency rule proposed
  findings of fact or conclusions of law, the decision or order shall
  include a ruling on each proposed finding or conclusion.
         SECTION 4.  Section 2001.142, Government Code, is amended to
  read as follows:
         Sec. 2001.142.  NOTIFICATION OF DECISIONS AND ORDERS.
  (a)  A state agency shall notify each party to [in] a contested case
  [shall be notified either personally or by first class mail] of any
  decision or order of the agency in the following manner:
               (1)  personally;
               (2)  if agreed to by the party to be notified, by
  electronic means sent to the current e-mail address or telecopier
  number of the party's attorney of record or of the party if the
  party is not represented by counsel; or
               (3)  by first class, certified, or registered mail sent
  to the last known address of the party's attorney of record or of
  the party if the party is not represented by counsel.
         (b)  When a decision or order [On issuance] in a contested
  case [of a decision] that may become final under Section 2001.144 is
  signed or when an order ruling on a motion for rehearing is signed,
  a state agency shall deliver or send a copy of the decision or order
  to each party in accordance with Subsection (a). The state agency
  shall keep a record documenting the provision of the notice
  provided to each party in accordance with Subsection (a) [by first
  class mail to the attorneys of record and shall keep an appropriate
  record of the mailing. If a party is not represented by an attorney
  of record, the state agency shall send a copy of the decision or
  order by first class mail to the party and shall keep an appropriate
  record of the mailing].
         (c)  If an adversely affected party or the party's attorney
  of record does not receive the notice required by Subsections (a)
  and (b) or acquire actual knowledge of a signed decision or order
  before the 15th day after the date the decision or order is signed,
  a period specified by or agreed to under Section 2001.144(a),
  2001.146, 2001.147, or 2001.176(a) relating to a decision or order
  or motion for rehearing begins, with respect to that party, on the
  date the party receives the notice or acquires actual knowledge of
  the signed decision or order, whichever occurs first.  The period
  may not begin earlier than the 15th day or later than the 90th day
  after the date the decision or order was signed [A party or attorney
  of record notified by mail under Subsection (b) is presumed to have
  been notified on the third day after the date on which the notice is
  mailed].
         (d)  To establish a revised period under Subsection (c), the
  adversely affected party must prove, on sworn motion and notice,
  that the date the party received notice from the state agency or
  acquired actual knowledge of the signing of the decision or order
  was after the 14th day after the date the decision or order was
  signed.
         (e)  The state agency must grant or deny the sworn motion not
  later than the date of the agency's governing board's next meeting
  or, for a state agency without a governing board with
  decision-making authority in contested cases, not later than the
  10th day after the date the agency receives the sworn motion.
         (f)  If the state agency fails to grant or deny the motion at
  the next meeting or before the 10th day after the date the agency
  receives the motion, as appropriate, the motion is considered
  granted.
         (g)  If the sworn motion filed under Subsection (d) is
  granted with respect to the party filing that motion, all the
  periods specified by or agreed to under Section 2001.144(a),
  2001.146, 2001.147, or 2001.176(a) relating to a decision or order,
  or motion for rehearing, shall begin on the date specified in the
  sworn motion that the party first received the notice required by
  Subsections (a) and (b) or acquired actual knowledge of the signed
  decision or order.  The date specified in the sworn motion shall be
  considered the date the decision or order was signed.
         SECTION 5.  The heading to Section 2001.143, Government
  Code, is amended to read as follows:
         Sec. 2001.143.  TIME OF [RENDERING] DECISION.
         SECTION 6.  Sections 2001.143(a) and (b), Government Code,
  are amended to read as follows:
         (a)  A decision or order that may become final under Section
  2001.144 in a contested case should [must] be signed [rendered] not
  later than the 60th day after the date on which the hearing is
  finally closed.
         (b)  In a contested case heard by other than a majority of the
  officials of a state agency, the agency or the person who conducts
  the contested case hearing may extend the period in which the
  decision or order may be signed [issued].
         SECTION 7.  Section 2001.144, Government Code, is amended to
  read as follows:
         Sec. 2001.144.  DECISIONS OR ORDERS; WHEN FINAL. (a)  A
  decision or order in a contested case is final:
               (1)  if a motion for rehearing is not filed on time, on
  the expiration of the period for filing a motion for rehearing;
               (2)  if a motion for rehearing is filed on time, on the
  date:
                     (A)  the order overruling the motion for rehearing
  is signed [rendered]; or
                     (B)  the motion is overruled by operation of law;
               (3)  if a state agency finds that an imminent peril to
  the public health, safety, or welfare requires immediate effect of
  a decision or order, on the date the decision or order is signed,
  provided that the agency incorporates in the decision or order a
  factual and legal basis establishing an imminent peril to the
  public health, safety, or welfare [rendered]; or
               (4)  on:
                     (A)  the date specified in the decision or order
  for a case in which all parties agree to the specified date in
  writing or on the record; or
                     (B)  [,] if the agreed specified date is [not]
  before the date the decision or order is signed, the date the
  decision or order is signed [or later than the 20th day after the
  date the order was rendered].
         (b)  If a decision or order is final under Subsection (a)(3),
  a state agency must recite in the decision or order the finding made
  under Subsection (a)(3) and the fact that the decision or order is
  final and effective on the date signed [rendered].
         SECTION 8.  Section 2001.145(b), Government Code, is amended
  to read as follows:
         (b)  A decision or order that is final under Section
  2001.144(a)(2), (3), or (4) is appealable.
         SECTION 9.  Section 2001.146, Government Code, is amended by
  amending Subsections (a), (b), (c), (e), and (f) and adding
  Subsections (g), (h), and (i) to read as follows:
         (a)  A motion for rehearing in a contested case must be filed
  by a party not later than the 25th [20th] day after the date [on
  which] the decision or order that is the subject of the motion is
  signed, unless the time for filing the motion for rehearing has been
  extended under Section 2001.142, by an agreement under Section
  2001.147, or by a written state agency order issued under
  Subsection (e).  On filing of the motion for rehearing, copies of
  the motion shall be sent to all other parties using the notification
  procedures specified by Section 2001.142(a) [party or the party's
  attorney of record is notified as required by Section 2001.142 of a
  decision or order that may become final under Section 2001.144].
         (b)  A party must file with the state agency a reply, if any, 
  to a motion for rehearing [must be filed with the state agency] not
  later than the 40th [30th] day after the date [on which the party or
  the party's attorney of record is notified as required by Section
  2001.142 of] the decision or order that is the subject of the motion
  is signed, or not later than the 10th day after the date a motion for
  rehearing is filed if the time for filing the motion for rehearing
  has been extended by an agreement under Section 2001.147 or by a
  written state agency order under Subsection (e).  On filing of the
  reply, copies of the reply shall be sent to all other parties using
  the notification procedures specified by Section 2001.142(a) [or
  order that may become final under Section 2001.144].
         (c)  A state agency shall act on a motion for rehearing not
  later than the 55th [45th] day after the date [on which the party or
  the party's attorney of record is notified as required by Section
  2001.142 of] the decision or order that is the subject of the motion
  is signed [that may become final under Section 2001.144] or the
  motion for rehearing is overruled by operation of law.
         (e)  A state agency may, on its own initiative or on the
  motion of any party for cause shown, by written order extend the
  time for filing a motion or reply or taking agency action under this
  section, provided that the agency extends the time or takes the
  action not later than the 10th day after the date the period for
  filing a motion or reply or taking agency action expires. An[,
  except that an] extension may not extend the period for agency
  action beyond the 100th [90th] day after the date [on which the
  party or the party's attorney of record is notified as required by
  Section 2001.142 of] the decision or order that is the subject of
  the motion is signed [that may become final under Section
  2001.144].
         (f)  In the event of an extension, a motion for rehearing is
  overruled by operation of law on the date fixed by the order or, in
  the absence of a fixed date, the 100th day [90 days] after the date
  [on which the party or the party's attorney of record is notified as
  required by Section 2001.142 of] the decision or order that is the
  subject of the motion is signed [that may become final under Section
  2001.144].
         (g)  A motion for rehearing must identify with particularity
  findings of fact or conclusions of law that are the subject of the
  complaint and any evidentiary or legal ruling claimed to be
  erroneous. The motion must also state the legal and factual basis
  for the claimed error.
         (h)  A subsequent motion for rehearing is not required after
  a state agency rules on a motion for rehearing unless the order
  disposing of the original motion for rehearing:
               (1)  modifies, corrects, or reforms in any respect the
  decision or order that is the subject of the complaint, other than a
  typographical, grammatical, or other clerical change identified as
  such by the agency in the order, including any modification,
  correction, or reformation that does not change the outcome of the
  contested case; or
               (2)  vacates the decision or order that is the subject
  of the motion and provides for a new decision or order.
         (i)  A subsequent motion for rehearing required by
  Subsection (h) must be filed not later than the 20th day after the
  date the order disposing of the original motion for rehearing is
  signed.
         SECTION 10.  Section 2001.176(a), Government Code, is
  amended to read as follows:
         (a)  A person initiates judicial review in a contested case
  by filing a petition not later than the 30th day after the date [on
  which] the decision or order that is the subject of complaint is
  final and appealable. In a contested case in which a motion for
  rehearing is a prerequisite for seeking judicial review, a
  prematurely filed petition is effective to initiate judicial review
  and is considered to be filed:
               (1)  on the date the last timely motion for rehearing is
  overruled; and
               (2)  after the motion is overruled.
         SECTION 11.  The changes in law made by this Act to Chapter
  2001, Government Code, apply only to an administrative hearing that
  is set by the State Office of Administrative Hearings, or another
  state agency conducting an administrative hearing, on or after the
  effective date of this Act. A hearing set before the effective date
  of this Act, or any decision issued or appeal from the hearing, is
  governed by the law in effect when the hearing was set, and the
  former law is continued in effect for that purpose.
         SECTION 12.  This Act takes effect September 1, 2015.
 
  * * * * *