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A BILL TO BE ENTITLED
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AN ACT
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relating to contested case hearings on matters under the |
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jurisdiction of the Texas Commission on Environmental Quality. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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ARTICLE 1. CONTESTED CASE HEARINGS |
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SECTION 1.01. The heading to Subchapter H, Chapter 5, Water |
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Code, is amended to read as follows: |
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SUBCHAPTER H. [DELEGATION OF] HEARINGS |
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SECTION 1.02. Section 5.311, Water Code, is amended to read |
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as follows: |
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Sec. 5.311. DELEGATION OF RESPONSIBILITY. (a) The |
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commission by rule may delegate to an administrative law judge of |
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the commission [State Office of Administrative Hearings] the |
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responsibility to hear any matter before the commission, if |
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consistent with the responsibilities of the office of |
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administrative law judge. |
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(b) The [Except as provided in Subsection (a), the] |
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administrative law judge shall report to the commission on the |
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hearing in the manner provided by law. |
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SECTION 1.03. Section 5.312(a), Water Code, is amended to |
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read as follows: |
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(a) Except as provided in Subsection (b) and otherwise in |
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this subchapter, all permit decisions shall be made within 180 days |
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of the receipt of the permit application or application amendment |
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or the determination of administrative completeness, whichever is |
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later. |
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SECTION 1.04. Section 5.315, Water Code, is amended to read |
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as follows: |
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Sec. 5.315. DISCOVERY IN CASES USING PREFILED WRITTEN |
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TESTIMONY. In a contested case hearing delegated by the commission |
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to an administrative law judge [the State Office of Administrative
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Hearings] that uses prefiled written testimony, all discovery must |
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be completed before the deadline set by the administrative law |
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judge [for the submission of that testimony]. |
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SECTION 1.05. Subchapter H, Chapter 5, Water Code, is |
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amended by adding Sections 5.316 through 5.326 to read as follows: |
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Sec. 5.316. HEARING BEFORE COMMISSION; APPLICABILITY OF |
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OTHER LAW. (a) An administrative law judge to whom the commission |
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has delegated a contested case hearing shall conduct the hearing |
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before the commission. |
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(b) The provisions of Chapter 2001, Government Code, apply |
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to contested case hearings for the commission to the extent not |
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inconsistent with this section. |
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Sec. 5.317. ADMINISTRATIVE LAW JUDGES AND TECHNICAL |
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ADVISORS. (a) The commission may contract with qualified |
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individuals to serve as temporary or permanent administrative law |
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judges or technical advisors as necessary. |
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(b) To be eligible to preside at a hearing on behalf of the |
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commission, an administrative law judge, regardless of temporary or |
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permanent status, must: |
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(1) be licensed to practice law in this state; and |
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(2) have the expertise necessary to conduct hearings |
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regarding technical or other specialized subjects that may come |
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before the commission. |
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(c) The commission may also appoint a technical advisor to |
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assist the administrative law judge in presiding over a delegated |
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hearing. |
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Sec. 5.318. HEARING TIMELINES. (a) The commission shall |
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specify the date by which the administrative law judge is expected |
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to complete the proceeding and provide a proposal for decision to |
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the commission. The administrative law judge may extend the |
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proceeding if the administrative law judge determines that failure |
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to grant an extension would deprive a party of due process or |
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another constitutional right. The administrative law judge shall |
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establish a docket control order designed to complete the |
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proceeding by the date specified by the commission. |
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(b) For a matter sent to hearing under Section 5.556 or |
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5.557, the administrative law judge shall complete the proceeding |
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and provide a proposal for decision to the commission not later than |
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the earlier of: |
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(1) the 180th day after the date of the preliminary |
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hearing; or |
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(2) the date specified by the commission. |
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(c) The timeline specified by Subsection (b) or (f), as |
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applicable, may be extended: |
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(1) by agreement of the parties with the approval of |
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the administrative law judge; or |
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(2) by the administrative law judge if the judge |
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determines that failure to extend the timeline would unduly deprive |
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a party of due process or another constitutional right. |
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(d) For the purposes of Subsection (c)(2), a political |
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subdivision has the same constitutional rights as an individual. |
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(e) This subsection applies only to a matter sent to hearing |
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under Section 5.557. The administrative law judge may not hold a |
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preliminary hearing until after the executive director has issued a |
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response to public comments under Section 5.555. |
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(f) For a matter relating to an application described by |
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Section 11.122(b-1), the administrative law judge must complete the |
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proceeding and provide a proposal for decision to the commission |
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not later than the 270th day after the date the matter was sent to |
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hearing. |
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Sec. 5.319. SCOPE OF HEARING. (a) In delegating a matter |
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for hearing, the commission shall provide to the administrative law |
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judge a list of specified issues. Each specified issue must have |
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been raised by an affected person in a comment submitted by that |
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affected person in response to a permit application in a timely |
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manner. The list of issues provided must: |
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(1) be detailed and complete; and |
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(2) contain either: |
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(A) only factual questions; or |
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(B) mixed questions of fact and law. |
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(b) Except as otherwise provided by this subsection, the |
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scope of the hearing is limited to the issues specified by the |
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commission. On the request of a party, the administrative law judge |
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may consider an issue that was not specified by the commission if |
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the administrative law judge determines that: |
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(1) the issue is material; |
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(2) the issue is supported by evidence; and |
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(3) there are good reasons for the failure to supply |
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available information regarding the issue during the public comment |
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period. |
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Sec. 5.320. DISCOVERY. (a) The scope of permissible |
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discovery is limited to: |
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(1) any matter that: |
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(A) is reasonably calculated to lead to the |
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discovery of admissible evidence regarding any issue specified by |
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the commission; or |
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(B) the administrative law judge has agreed to |
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consider; and |
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(2) the production of documents: |
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(A) reviewed or relied on in preparing |
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application materials or selecting the site of the proposed |
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facility; or |
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(B) relating to the ownership of the applicant or |
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the owner or operator of the facility or proposed facility. |
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(b) The commission by rule shall: |
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(1) provide for subpoenas and commissions for |
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depositions; and |
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(2) require that discovery be conducted in accordance |
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with the Texas Rules of Civil Procedure, except that the commission |
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by rule shall determine the level of discovery under Rule 190, Texas |
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Rules of Civil Procedure, appropriate for each type of case |
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considered by the commission, taking into account the nature and |
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complexity of the case. |
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Sec. 5.321. CERTIFICATION OF ISSUES. The commission shall |
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adopt rules providing for certification to the commission of an |
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issue that involves an ultimate finding of compliance with or |
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satisfaction of a statutory standard the determination of which is |
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committed to the discretion or judgment of the commission by law. |
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The rules must address, at a minimum: |
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(1) the issues that are appropriate for certification; |
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and |
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(2) the procedure to be used in certifying an issue. |
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Sec. 5.322. PRIMA FACIE DEMONSTRATION IN CERTAIN CASES. |
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(a) In a contested case regarding a permit application sent to |
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hearing under Section 5.556 or Section 5.557, the filing with the |
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administrative law judge of the application, the draft permit |
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prepared by the executive director, the preliminary decision issued |
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by the executive director, and other sufficient supporting |
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documentation in the administrative record of the permit |
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application establishes a prima facie demonstration that: |
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(1) the draft permit meets all state and federal legal |
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and technical requirements; and |
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(2) a permit, if issued consistent with the draft |
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permit, would protect human health and safety, the environment, and |
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physical property. |
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(b) A party may rebut a demonstration under Subsection (a) |
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by presenting evidence that: |
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(1) relates to a matter sent to hearing under Section |
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5.557, or an issue included in a list submitted under Section 5.319 |
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in connection with a matter specified under Section 5.556; and |
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(2) demonstrates that one or more provisions in the |
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draft permit violate a specifically applicable state or federal |
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requirement. |
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(c) If in accordance with Subsection (b) a party rebuts a |
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presumption established under Subsection (a), the applicant and the |
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executive director may present additional evidence to support the |
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draft permit. |
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Sec. 5.323. SANCTIONS. (a) An administrative law judge |
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hearing a case on behalf of the commission, on the judge's own |
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motion or on motion of a party and after notice and an opportunity |
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for a hearing, may impose appropriate sanctions as provided by |
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Subsection (b) against a party or its representative for: |
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(1) filing a motion or pleading that is groundless and |
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brought: |
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(A) in bad faith; |
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(B) for the purpose of harassment; or |
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(C) for any other improper purpose, such as to |
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cause unnecessary delay or needless increase in the cost of the |
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proceeding; |
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(2) abuse of the discovery process in seeking, making, |
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or resisting discovery; or |
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(3) failure to obey an order of the administrative law |
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judge or the commission. |
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(b) A sanction imposed under Subsection (a) may include, as |
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appropriate and justified, issuance of an order: |
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(1) disallowing further discovery of any kind or of a |
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particular kind by the offending party; |
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(2) charging all or any part of the expenses of |
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discovery against the offending party or its representatives; |
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(3) holding that designated facts be considered |
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admitted for purposes of the proceeding; |
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(4) refusing to allow the offending party to support |
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or oppose a designated claim or defense or prohibiting the party |
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from introducing designated matters into evidence; |
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(5) wholly or partly disallowing requests for relief |
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by the offending party and excluding evidence in support of those |
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requests; and |
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(6) wholly or partly striking pleadings or testimony, |
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or both. |
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Sec. 5.324. PROPOSAL FOR DECISION. (a) After hearing |
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evidence and receiving legal argument, an administrative law judge |
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shall: |
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(1) separately state findings of fact, conclusions of |
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law, and any ultimate findings required by statute; and |
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(2) make a proposal for decision to the commission and |
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serve the proposal for decision on all parties. |
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(b) An opportunity shall be given to each party to file |
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exceptions to the proposal for decision and briefs related to the |
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issues addressed in the proposal for decision. |
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(c) The commission shall consider and act on the proposal |
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for decision. |
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Sec. 5.325. COMMISSION CONSIDERATION OF AND ACTION ON |
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PROPOSAL FOR DECISION. (a) Except as provided by Section 361.0832, |
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Health and Safety Code, the commission shall consider the proposal |
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for decision prepared by the administrative law judge, the |
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exceptions of the parties, and the briefs and argument of the |
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parties. |
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(b) The commission may amend the proposal for decision, |
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including any finding of fact, but an amendment to the proposal for |
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decision and order must be based solely on the record made before |
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the administrative law judge. An amendment by the commission must |
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be accompanied by an explanation of the basis of the amendment. |
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(c) The commission may return the matter back to the |
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administrative law judge to: |
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(1) reconsider any findings and conclusions set forth |
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in the proposal for decision; or |
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(2) take additional evidence or to make additional |
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findings of fact or conclusions of law. |
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(d) The commission shall serve a copy of the commission's |
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order, including its finding of facts and conclusions of law, on |
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each party. |
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Sec. 5.326. ALTERNATIVE DISPUTE RESOLUTION. (a) An |
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administrative law judge hearing a case on behalf of the commission |
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may not, without the agreement of all parties, issue an order |
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referring the case to an alternative dispute resolution procedure |
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if the commission has already conducted an unsuccessful alternative |
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dispute resolution procedure. |
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(b) If the commission has not already conducted an |
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alternative dispute resolution procedure, the administrative law |
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judge shall consider the commission's recommendation in |
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determining whether to issue an order referring the case to the |
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procedure. |
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SECTION 1.06. Sections 5.556(d) and (e), Water Code, are |
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amended to read as follows: |
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(d) The commission may not specify [refer] an issue to be |
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heard at a contested case [the State Office of Administrative
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Hearings for a] hearing unless the commission determines that the |
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issue: |
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(1) involves a disputed question of fact; |
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(2) was raised during the public comment period; and |
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(3) is relevant and material to the decision on the |
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application. |
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(e) If the commission grants a request for a contested case |
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hearing it shall: |
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(1) limit the number and scope of the issues to be |
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specified [referred to the State Office of Administrative Hearings] |
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for a hearing; and |
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(2) consistent with the nature and number of the |
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issues to be considered at the hearing, specify the maximum |
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expected duration of the hearing. |
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SECTION 1.07. Section 5.557(b), Water Code, is amended to |
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read as follows: |
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(b) Sections 5.318(a), 5.319, 5.554, 5.555, and 5.556 [of
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this code and Sections 2003.047(e) and (f), Government Code,] do |
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not apply to an application referred for a hearing under Subsection |
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(a). |
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ARTICLE 2. CONFORMING AMENDMENTS |
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SECTION 2.01. Section 2003.024(d), Government Code, is |
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amended to read as follows: |
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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; or |
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(2) under the administrative license revocation |
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program. |
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SECTION 2.02. Section 2003.025(a), Government Code, is |
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amended to read as follows: |
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(a) This section applies to a state agency that has entered |
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into a contract with the office for the conduct of hearings and |
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alternative dispute resolution procedures for the agency, |
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including a contract under Section 2003.024, [2003.048,] 2003.049, |
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or 2003.105, during any of the three most recent state fiscal years. |
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SECTION 2.03. 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 |
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[the Texas Commission on Environmental Quality or] the Public |
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Utility Commission of Texas which are governed by Section [Sections
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2003.047 and] 2003.049. |
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ARTICLE 3. REPEALER |
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SECTION 3.01. The following provisions are repealed: |
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(1) Section 2003.047, Government Code; |
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(2) Section 2003.048, Government Code; and |
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(2) Section 5.313, Water Code. |
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ARTICLE 4. TRANSITION; EFFECTIVE DATE |
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SECTION 4.01. The changes in law made by this Act apply only |
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to a contested case hearing referred by the Texas Commission on |
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Environmental Quality to an administrative law judge on or after |
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the effective date of this Act. A contested case hearing referred |
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by the Texas Commission on Environmental Quality to an |
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administrative law judge before the effective date of this Act is |
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governed by the law in effect at the time the case was referred and |
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the former law is continued in effect for that purpose. |
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SECTION 4.02. This Act takes effect September 1, 2019. |