By: Lucio III (Senate Sponsor - Perry) H.B. No. 2179
(In the Senate - Received from the House May 6, 2015;
May 6, 2015, read first time and referred to Committee on
Agriculture, Water, and Rural Affairs; May 12, 2015, reported
favorably by the following vote: Yeas 6, Nays 0; May 12, 2015, sent
to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to hearings that concern the issuance of permits by a
groundwater conservation district.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 36.403, Water Code, is amended to read as
follows:
Sec. 36.403. SCHEDULING OF PUBLIC HEARING. (a) The general
manager or board may schedule a public hearing on permit or permit
amendment applications received by the district as necessary, as
provided by Section 36.114.
(b) The general manager or board may schedule more than one
application for consideration at a public hearing.
(c) A public hearing must be held at the district office or
regular meeting location of the board unless the board provides for
hearings to be held at a different location.
(d) A public hearing may be held in conjunction with a
regularly scheduled board meeting.
SECTION 2. Sections 36.404(a) and (d), Water Code, are
amended to read as follows:
(a) If the general manager or board schedules a public
hearing on an application for a permit or permit amendment, the
general manager or board shall give notice of the hearing as
provided by this section.
(d) A person may request notice from the district of a
public hearing on a permit or a permit amendment application. The
request must be in writing and is effective for the remainder of the
calendar year in which the request is received by the district. To
receive notice of a public hearing in a later year, a person must
submit a new request. An affidavit of an officer or employee of the
district establishing attempted service by first class mail,
facsimile, or e-mail to the person in accordance with the
information provided by the person is proof that notice was
provided by the district.
SECTION 3. Section 36.405, Water Code, is amended to read as
follows:
Sec. 36.405. HEARING REGISTRATION. The district may
require each person who participates in a public hearing to submit a
hearing registration form stating:
(1) the person's name;
(2) the person's address; and
(3) whom the person represents, if the person is not
there in the person's individual capacity.
SECTION 4. Subchapter M, Chapter 36, Water Code, is amended
by adding Section 36.4051 to read as follows:
Sec. 36.4051. BOARD ACTION; CONTESTED CASE HEARING
REQUESTS; PRELIMINARY HEARING. (a) The board may take action on
any uncontested application at a properly noticed public meeting
held at any time after the public hearing at which the application
is scheduled to be heard. The board may issue a written order to:
(1) grant the application;
(2) grant the application with special conditions; or
(3) deny the application.
(b) The board shall schedule a preliminary hearing to hear a
request for a contested case hearing filed in accordance with rules
adopted under Section 36.415. The preliminary hearing may be
conducted by:
(1) a quorum of the board;
(2) an individual to whom the board has delegated in
writing the responsibility to preside as a hearing examiner over
the hearing or matters related to the hearing; or
(3) the State Office of Administrative Hearings under
Section 36.416.
(c) Following a preliminary hearing, the board shall
determine whether any person requesting the contested case hearing
has standing to make that request and whether a justiciable issue
related to the application has been raised. If the board determines
that no person who requested a contested case hearing had standing
or that no justiciable issues were raised, the board may take any
action authorized under Subsection (a).
(d) An applicant may, not later than the 20th day after the
date the board issues an order granting the application, demand a
contested case hearing if the order:
(1) includes special conditions that were not part of
the application as finally submitted; or
(2) grants a maximum amount of groundwater production
that is less than the amount requested in the application.
SECTION 5. Section 36.406(d), Water Code, is amended to
read as follows:
(d) The presiding officer may:
(1) convene the hearing at the time and place
specified in the notice;
(2) set any necessary additional hearing dates;
(3) designate the parties regarding a contested
application;
(4) establish the order for presentation of evidence;
(5) administer oaths to all persons presenting
testimony;
(6) examine persons presenting testimony;
(7) ensure that information and testimony are
introduced as conveniently and expeditiously as possible without
prejudicing the rights of any party;
(8) prescribe reasonable time limits for testimony and
the presentation of evidence; [and]
(9) exercise the procedural rules adopted under
Section 36.415; and
(10) determine how to apportion among the parties the
costs related to:
(A) a contract for the services of a presiding
officer; and
(B) the preparation of the official hearing
record.
SECTION 6. Section 36.410, Water Code, is amended to read as
follows:
Sec. 36.410. PROPOSAL FOR DECISION [REPORT]. (a) Except as
provided by Subsection (e), the presiding officer shall submit a
proposal for decision [report] to the board not later than the 30th
day after the date the evidentiary [a] hearing is concluded.
(b) The proposal for decision [report] must include:
(1) a summary of the subject matter of the hearing;
(2) a summary of the evidence or public comments
received; and
(3) the presiding officer's recommendations for board
action on the subject matter of the hearing.
(c) The presiding officer or general manager shall provide a
copy of the proposal for decision [report] to:
(1) the applicant; and
(2) each [person who provided comments or each]
designated party.
(d) A party [person who receives a copy of the report under
Subsection (c)] may submit to the board written exceptions to the
proposal for decision [report].
(e) If the hearing was conducted by a quorum of the board and
if the presiding officer prepared a record of the hearing as
provided by Section 36.408(a), the presiding officer shall
determine whether to prepare and submit a proposal for decision
[report] to the board under this section.
(f) The board shall consider the proposal for decision at a
final hearing. Additional evidence may not be presented during a
final hearing. The parties may present oral argument at a final
hearing to summarize the evidence, present legal argument, or argue
an exception to the proposal for decision. A final hearing may be
continued as provided by Section 36.409.
SECTION 7. Sections 36.412(a), (b), and (c), Water Code,
are amended to read as follows:
(a) An applicant in a contested or uncontested hearing on an
application or a party to a contested hearing may administratively
appeal a decision of the board on a permit or permit amendment
application by requesting written findings and conclusions [or a
rehearing before the board] not later than the 20th day after the
date of the board's decision.
(b) On receipt of a timely written request, the board shall
make written findings and conclusions regarding a decision of the
board on a permit or permit amendment application. The board shall
provide certified copies of the findings and conclusions to the
person who requested them, and to each [person who provided
comments or each] designated party, not later than the 35th day
after the date the board receives the request. A party to a
contested hearing [person who receives a certified copy of the
findings and conclusions from the board] may request a rehearing
[before the board] not later than the 20th day after the date the
board issues the findings and conclusions.
(c) A request for rehearing must be filed in the district
office and must state the grounds for the request. If the original
hearing was a contested hearing, the party [person] requesting a
rehearing must provide copies of the request to all parties to the
hearing.
SECTION 8. Section 36.415(b), Water Code, is amended to
read as follows:
(b) In adopting the rules, a district shall:
(1) define under what circumstances an application is
considered contested; [and]
(2) limit participation in a hearing on a contested
application to persons who have a personal justiciable interest
related to a legal right, duty, privilege, power, or economic
interest that is within a district's regulatory authority and
affected by a permit or permit amendment application, not including
persons who have an interest common to members of the public; and
(3) establish the deadline for a person who may
participate under Subdivision (2) to file in the manner required by
the district a protest and request for a contested case hearing.
SECTION 9. Section 36.416, Water Code, is amended by adding
Subsections (d), (e), and (f) to read as follows:
(d) An administrative law judge who conducts a contested
case hearing shall consider applicable district rules or policies
in conducting the hearing, but the district deciding the case may
not supervise the administrative law judge.
(e) A district shall provide the administrative law judge
with a written statement of applicable rules or policies.
(f) A district may not attempt to influence the finding of
facts or the administrative law judge's application of the law in a
contested case except by proper evidence and legal argument.
SECTION 10. Section 36.4165, Water Code, is amended to read
as follows:
Sec. 36.4165. FINAL DECISION; CONTESTED CASE HEARINGS. (a)
In a proceeding for a permit application or amendment in which a
district has contracted with the State Office of Administrative
Hearings for a contested case hearing, the board has the authority
to make a final decision on consideration of a proposal for decision
issued by an administrative law judge [consistent with Section
2001.058, Government Code].
(b) A board may change a finding of fact or conclusion of law
made by the administrative law judge, or may vacate or modify an
order issued by the administrative judge, only if the board
determines:
(1) that the administrative law judge did not properly
apply or interpret applicable law, district rules, written policies
provided under Section 36.416(e), or prior administrative
decisions;
(2) that a prior administrative decision on which the
administrative law judge relied is incorrect or should be changed;
or
(3) that a technical error in a finding of fact should
be changed.
SECTION 11. The changes in law made by this Act apply only
to an application for a permit or a permit amendment that is
received by a groundwater conservation district on or after the
effective date of this Act. An application for a permit or permit
amendment that is received before the effective date of this Act is
governed by the law in effect on the date the application is
received, and that law is continued in effect for that purpose.
SECTION 12. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2015.
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