Texas 2009 - 81st Regular

Texas House Bill HB4171 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R3737 JRH-F
2	2	By: Christian H.B. No. 4171
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to procedures to help ensure that certain state agency
8	8	rules are consistent with the meaning and intent of applicable
9	9	legislative enactments.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 2001.032, Government Code, is amended to
12	12	read as follows:
13	13	Sec. 2001.032. CONSIDERATION OF LEGISLATIVE INTENT
14	14	[REVIEW]. (a) In the process of developing a new rule and before a
15	15	state agency gives notice of its intention to adopt a rule under
16	16	Sections 2001.023 and 2001.024, the agency shall research the
17	17	legislative history of and prepare a legislative history on the law
18	18	under which the rule is to be adopted. To effectively research and
19	19	prepare the legislative history, the state agency must:
20	20	(1) ascertain the names of the primary author and
21	21	sponsor of the legislation that added or amended the law that
22	22	authorizes the agency to adopt the rule by consulting with the chief
23	23	clerk of the house of representatives, the secretary of the senate,
24	24	an automated information system operated by the Texas Legislative
25	25	Council, or another reliable source;
26	26	(2) identify any statement or discussion of
27	27	legislative intent that occurred in the legislative process before
28	28	enrollment in connection with the legislation that added or amended
29	29	the law under which the rule would be adopted;
30	30	(3) review the final publicly available bill analysis
31	31	prepared by a legislative office before enrollment;
32	32	(4) determine whether each legislative author or
33	33	sponsor identified in Subdivision (1) is still a member of the
34	34	legislature; and
35	35	(5) assemble the information gathered under
36	36	Subdivisions (1), (2), (3), and (4) into a legislative history to be
37	37	used by the agency during the deliberative process of developing
38	38	new rules.
39	39	(b) In this section, a reference to the law under which a
40	40	rule is or would be adopted includes the law that the rule would
41	41	implement or enforce.
42	42	(c) Before a state agency gives notice of its intention to
43	43	adopt a rule under Sections 2001.023 and 2001.024, the agency
44	44	shall:
45	45	(1) ensure that the proposed rule is consistent with
46	46	the legislature's intent in enacting or otherwise affecting the law
47	47	under which the rule would be adopted; and
48	48	(2) notify the primary author and sponsor of the
49	49	legislation that added or amended the law under which the rule would
50	50	be adopted that the adoption of a rule related to the member's
51	51	legislation is being considered.
52	52	(d) Concurrently with the state agency's filing of the
53	53	notice with the secretary of state, the agency shall deliver a copy
54	54	of the notice of the proposed rule required by Sections 2001.023 and
55	55	2001.024 to the primary author and sponsor as described in the
56	56	legislative history.
57	57	(e) Not later than the 10th day before the date the state
58	58	agency considers the proposed rule for final adoption, the agency
59	59	shall deliver to the primary author and sponsor a copy of the
60	60	proposed rule if the text of the rule differs from the text of the
61	61	proposed rule published under Section 2001.024. The agency also
62	62	shall notify the primary author and sponsor in a timely manner of
63	63	the time and place of a public hearing or informal conference held
64	64	in connection with the contemplated rulemaking.
65	65	(f) The primary author or sponsor of legislation that added
66	66	or amended the law under which the rule would be adopted may
67	67	formally advise the governor in writing of the person's belief that
68	68	the proposed rule is not consistent with the intent of the
69	69	legislature.
70	70	(g) Before the state agency adopts the rule, the governor
71	71	may issue a proclamation instructing the agency not to adopt the
72	72	rule. After the state agency adopts the rule, the governor may,
73	73	during the 90-day period following the date the agency finally
74	74	adopts the rule, issue a proclamation vacating the rule. A
75	75	proclamation under this subsection must describe how the rule is
76	76	inconsistent with the intent of the legislature.
77	77	(h) The state agency may not adopt the proposed rule if the
78	78	agency receives the proclamation instructing the agency not to
79	79	adopt the rule before the agency meets to consider the rule for
80	80	final adoption. A rule is vacated if the governor issues a
81	81	proclamation vacating the rule within the period prescribed by
82	82	Subsection (g). The agency also shall promptly deliver a copy of a
83	83	proclamation received under Subsection (g) to the primary author
84	84	and sponsor.
85	85	(i) A rule is vacated under this section as of the date of
86	86	issuance of the governor's proclamation vacating the rule. A
87	87	decision or act taken under the vacated rule on or after the date
88	88	the rule took effect but before the date the rule is vacated is
89	89	governed by the rule that was in effect when the decision or act was
90	90	taken, and the vacated rule is continued in effect for that purpose.
91	91	(j) The state agency shall deliver a copy of an emergency
92	92	rule adopted under Section 2001.034 and the written reasons for its
93	93	adoption to the primary author and sponsor as determined by the
94	94	legislative history with respect to the law under which the
95	95	emergency rule was adopted concurrently with the agency's filing of
96	96	the rule and the reasons for its adoption with the secretary of
97	97	state. If the agency gives an abbreviated notice or conducts a
98	98	hearing in connection with the adoption of the emergency rule, the
99	99	agency shall also promptly deliver to the primary author and
100	100	sponsor a copy of the notice and shall timely inform the primary
101	101	author and sponsor of the time and place of the hearing.
102	102	(k) Failure to provide notice under this section does not
103	103	invalidate an action taken or rule adopted. A requirement of this
104	104	section that a notice or other item be delivered to a primary author
105	105	or sponsor of legislation does not apply if the author or sponsor is
106	106	no longer a member of the legislature.
107	107	(l) Each house of the legislature shall consider the
108	108	adoption of a rule that allows:
109	109	(1) the primary author of a bill to enter a statement
110	110	of legislative intent into the bill analysis before the bill is
111	111	considered in a committee hearing in the originating house; and
112	112	(2) the author of each adopted amendment to a bill to
113	113	enter a statement into the bill analysis that indicates how the
114	114	amendment's author intends to change the purpose of the bill. [Each
115	115	house of the legislature by rule shall establish a process under
116	116	which the presiding officer of each house refers each proposed
117	117	state agency rule to the appropriate standing committee for review
118	118	before the rule is adopted.
119	119	[(b) A state agency shall deliver to the lieutenant governor
120	120	and the speaker of the house of representatives a copy of the notice
121	121	of a proposed rule when the agency files notice with the secretary
122	122	of state under Section 2001.023.
123	123	[(c) On the vote of a majority of its members, a standing
124	124	committee may send to a state agency a statement supporting or
125	125	opposing adoption of a proposed rule.]
126	126	SECTION 2. Section 2001.024(a), Government Code, is amended
127	127	to read as follows:
128	128	(a) The notice of a proposed rule must include:
129	129	(1) a brief explanation of the proposed rule;
130	130	(2) the text of the proposed rule, except any portion
131	131	omitted under Section 2002.014, prepared in a manner to indicate
132	132	any words to be added or deleted from the current text;
133	133	(3) a statement of the statutory or other authority
134	134	under which the rule is proposed to be adopted, including:
135	135	(A) a concise explanation of the particular
136	136	statutory or other provisions under which the rule is proposed;
137	137	(B) the section or article of the code affected;
138	138	[and]
139	139	(C) a certification that the proposed rule has
140	140	been reviewed by legal counsel and found to be:
141	141	(i) within the state agency's authority to
142	142	adopt; and
143	143	(ii) consistent with the intent of the
144	144	legislature in enacting or otherwise affecting the law under which
145	145	the rule would be adopted, as described by Section 2001.032; and
146	146	(D) a copy of the legislative history developed
147	147	for use by the agency during the deliberative process of developing
148	148	the rule;
149	149	(4) a fiscal note showing the name and title of the
150	150	officer or employee responsible for preparing or approving the note
151	151	and stating for each year of the first five years that the rule will
152	152	be in effect:
153	153	(A) the additional estimated cost to the state
154	154	and to local governments expected as a result of enforcing or
155	155	administering the rule;
156	156	(B) the estimated reductions in costs to the
157	157	state and to local governments as a result of enforcing or
158	158	administering the rule;
159	159	(C) the estimated loss or increase in revenue to
160	160	the state or to local governments as a result of enforcing or
161	161	administering the rule; and
162	162	(D) if applicable, that enforcing or
163	163	administering the rule does not have foreseeable implications
164	164	relating to cost or revenues of the state or local governments;
165	165	(5) a note about public benefits and costs showing the
166	166	name and title of the officer or employee responsible for preparing
167	167	or approving the note and stating for each year of the first five
168	168	years that the rule will be in effect:
169	169	(A) the public benefits expected as a result of
170	170	adoption of the proposed rule; and
171	171	(B) the probable economic cost to persons
172	172	required to comply with the rule;
173	173	(6) the local employment impact statement prepared
174	174	under Section 2001.022, if required;
175	175	(7) a request for comments on the proposed rule from
176	176	any interested person; and
177	177	(8) any other statement required by law.
178	178	SECTION 3. Section 2001.033, Government Code, is amended to
179	179	read as follows:
180	180	Sec. 2001.033. STATE AGENCY ORDER ADOPTING RULE. (a) A
181	181	state agency order finally adopting a rule must include:
182	182	(1) a reasoned justification for the rule as adopted
183	183	consisting solely of:
184	184	(A) any written comments received from members of
185	185	the legislature and a summary of comments received from parties
186	186	interested in the rule that shows the names of interested groups or
187	187	associations offering comment on the rule and of members of the
188	188	legislature offering written comment on the rule and whether they
189	189	were for or against its adoption;
190	190	(B) a summary of the factual basis for the rule as
191	191	adopted which demonstrates a rational connection between the
192	192	factual basis for the rule and the rule as adopted; and
193	193	(C) the reasons why the agency disagrees with
194	194	party submissions and proposals and with any written comments or
195	195	proposals offered by a member of the legislature;
196	196	(2) a concise restatement of the particular statutory
197	197	provisions under which the rule is adopted and of how the agency
198	198	interprets the provisions as authorizing or requiring the rule; and
199	199	(3) a certification that the rule, as adopted, has
200	200	been reviewed by legal counsel and found to be:
201	201	(A) a valid exercise of the agency's legal
202	202	authority; and
203	203	(B) consistent with the intent of the legislature
204	204	in enacting or otherwise affecting the law under which the rule is
205	205	adopted, as described by Section 2001.032.
206	206	(b) Nothing in this section shall be construed to require
207	207	additional analysis of alternatives not adopted by an agency beyond
208	208	that required by Subsection (a)(1)(C) [Subdivision (1)(C)] or to
209	209	require the reasoned justification to be stated separately from the
210	210	statements required in Subsection (a)(1) [Subdivision (1)].
211	211	SECTION 4. The change in law made by this Act relating to
212	212	the process of state agency rulemaking applies only in relation to:
213	213	(1) a state agency rule for which notice of the rule as
214	214	proposed is first published in the Texas Register under Sections
215	215	2001.023 and 2001.024, Government Code, on or after October 1,
216	216	2009; or
217	217	(2) an emergency rule adopted on or after September
218	218	15, 2009.
219	219	SECTION 5. This Act takes effect September 1, 2009.