By: Estes S.B. No. 522
A BILL TO BE ENTITLED
AN ACT
relating to contested cases held 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
10 [three] days before the date set for the hearing. In a
proceeding concerning the grant, denial, revocation, suspension,
annulment, withdrawal, or renewal of a license, 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 such statute or rule not less than 10 days before
the date set for the hearing.
(c) In a suit for judicial review of a final decision of a
state agency in a contested case, the agency's failure to comply
with Subsection (a)(3) or Subsection (b) shall constitute
substantial prejudice to the rights of the appellant under Section
2001.174(2).
SECTION 2. Section 2001.054, Government Code, is amended to
read as follows:
(a) The provisions of this chapter concerning contested
cases apply to the grant, denial, or renewal of a license that is
required to be preceded by notice and opportunity for hearing.
(b) If a license holder makes timely and sufficient
application for the renewal of a license or for a new license for an
activity of a continuing nature, the existing license does not
expire until the application has been finally determined by the
state agency. If the application is denied or the terms of the new
license are limited, the existing license does not expire until the
last day for seeking review of the agency order or a later date
fixed by order of the reviewing court.
(c) A revocation, suspension, annulment, or withdrawal of a
license is not effective unless, before institution of state agency
proceedings:
(1) the agency gives notice by personal service or by
registered or certified mail to the license holder of facts or
conduct alleged to warrant the intended action; and
(2) the license holder is given an opportunity to show
compliance with all requirements of law for the retention of the
license.
If, however, the agency finds that an imminent peril to the
public health, safety or welfare imperatively requires emergency
action, and incorporates a factual and legal basis establishing
that imminent peril in an order, summary suspension of a license may
be ordered pending proceedings for revocation or other action. Such
an order is final and appealable to a Travis County district court
upon entry.
(d) A license described in Subsection (a) remains valid
unless it expires without timely application for renewal, is
amended, revoked, suspended, annulled, or withdrawn, or the denial
of a renewal application becomes final. The term or duration of a
license described in Subsection (a) is tolled during the period the
license is subjected to judicial review. However, the term or
duration of a license is not tolled if, during judicial review, the
licensee engages in the activity for which the license was issued.
(e) In a suit for judicial review of a final decision of a
state agency brought by a license holder, the agency's failure to
comply with Subsection (c) shall constitute substantial prejudice
to the rights of the license holder under Section 2001.174(2).
SECTION 3. Subsections (a) and (e), Section 2001.141,
Government Code, are amended to read as follows:
(a) A decision of a state agency [or order] 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 law to sign the agency decision [or stated in the record].
(e) If a party submits under a state agency rule proposed
findings of fact or conclusions of law, the decision 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 of any decision or order of the agency in the
following manner:
(1) by certified or registered mail sent to the last
known address of the party or to the party's attorney of record; or
(2) by electronic means to the current e-mail address
or telecopier number of the party or the party's attorney of record
[shall be notified either personally or by first class mail of any
decision or order].
(b) When a decision [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 send a copy of the decision or order to each party in
accordance with Subsection (a). The state agency must keep a record
documenting the provision and receipt of the notice [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 does not receive timely
notice under this section of a signed decision or rehearing order,
then, with respect to that party, a time period provided under
Section 2001.144(a), 2001.146, 2001.147, or 2001.176(a) relating
to a decision or motion for rehearing begins on the date the party
receives such notice or acquires actual knowledge of the signed
decision or rehearing order, whichever occurs first. However, in
no event shall such period begin earlier than the 15th day or later
than the 90th day after the decision or rehearing 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 time 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 rehearing order was more than 14 days after the decision or
rehearing 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. Subsections (a) and (b), Section 2001.143,
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 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. Sections 2001.144 and 2001.145, Government Code,
are amended to read as follows:
Sec. 2001.144. DECISIONS; WHEN FINAL. (a) A decision 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;
or
(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 is signed, and sets
forth a factual and legal basis establishing an imminent peril to
the public health, safety, or welfare [rendered; or
[(4) on the date specified in the order for a case in
which all parties agree to the specified date in writing or on the
record, if the specified date is not before the date the 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].
Sec. 2001.145. MOTIONS FOR REHEARING: PREREQUISITES TO
APPEAL. (a) A timely motion for rehearing is a prerequisite to an
appeal in a contested case except that a motion for rehearing of a
decision [or order] that is final under Section 2001.144(a)(3) [or
(4)] is not a prerequisite for appeal.
(b) A decision that is final under Section 2001.144(a)(2)
or[,] (3)[, or (4)] is appealable.
SECTION 8. Section 2001.146, Government Code, is amended by
amending Subsections (a), (b), (c), (e), and (f) and adding
Subsections (g) and (h) to read as follows:
(a) A motion for rehearing in a contested case must be filed
by a party and served on all other parties to the contested case in
accordance with Rule 21a, Texas Rules of Civil Procedure, not later
than the 20th day after the date on which the decision that is the
subject of complaint is signed [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 reply to a motion for rehearing must be filed with the
state agency not later than the 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 that is the subject [or order]
of complaint is signed, or not later than the 10th day after a
motion for rehearing is filed if the time for filing the motion for
rehearing has been extended by a valid agreement under Section
2001.147 or by a written agency order under Subsection (e) [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 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 that is the subject of complaint is signed
[or order that may become final under Section 2001.144] or the
motion for rehearing is overruled by operation of law.
(e) Not later than the 30th day after a decision that is the
subject of complaint is signed, a [A] state agency may, on its own
initiative or on the motion of any party, by written order extend
the time for filing a motion or reply or taking agency action under
this section. An [, except that an] extension may not extend the
period for agency action beyond the 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 that is the subject of
complaint is signed [or order 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, 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 that is the subject of complaint
is signed [or order 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
complaint and any evidentiary or legal ruling claimed to be
erroneous. The motion must also set forth the legal and factual
basis for the claimed error.
(h) After an agency rules on a motion for rehearing, a
further motion for rehearing must be filed not later than 20 days
after the order disposing of the original motion for rehearing is
signed, if that order:
(1) modifies in any respect the decision that is the
subject of complaint, even if the modification does not change the
outcome of the contested case or makes only typographical,
grammatical, or immaterial changes to the decision; or
(2) vacates the decision that is the subject of
complaint and issues a new decision.
SECTION 9. Subsection (a), Section 2001.176, 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 that is the subject of complaint is final and
appealable. A prematurely filed petition is effective to initiate
judicial review and is deemed filed on the day of, but after, the
event that begins the period for filing a petition.
SECTION 10. The changes in law made by this Act to Chapter
2001, Government Code, apply only to an administrative hearing
conducted, or to a decision in an administrative hearing issued, on
or after the effective date of this Act. A hearing conducted or
decision issued before the effective date of this Act is governed by
the law in effect when the hearing was conducted or the decision was
issued, and the former law is continued in effect for that purpose.
SECTION 11. This Act takes effect September 1, 2013.