Texas 2015 - 84th Regular

Texas Senate Bill SB1267 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	By: Estes, et al. S.B. No. 1267
2		-	(Clardy)
	1	+	S.B. No. 1267
3	2
4	3
5		-	A BILL TO BE ENTITLED
6	4		AN ACT
7	5		relating to contested cases conducted under the Administrative
8	6		Procedure Act.
9	7		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	8		SECTION 1. Section 2001.052, Government Code, is amended to
11	9		read as follows:
12	10		Sec. 2001.052. CONTENTS OF NOTICE. (a) Notice of a
13	11		hearing in a contested case must include:
14	12		(1) a statement of the time, place, and nature of the
15	13		hearing;
16	14		(2) a statement of the legal authority and
17	15		jurisdiction under which the hearing is to be held;
18	16		(3) a reference to the particular sections of the
19	17		statutes and rules involved; and
20	18		(4) a short, plain statement of the factual matters
21	19		asserted.
22	20		(b) If a state agency or other party is unable to state
23	21		factual matters in detail at the time notice under this section is
24	22		served, an initial notice may be limited to a statement of the
25	23		issues involved. On timely written application, a more definite
26	24		and detailed statement of the facts shall be furnished not less than
27	25		seven [three] days before the date set for the hearing. In a
28	26		proceeding in which the state agency has the burden of proof, a
29	27		state agency that intends to rely on a section of a statute or rule
30	28		not previously referenced in the notice of hearing must amend the
31	29		notice to refer to the section of the statute or rule not later than
32	30		the seventh day before the date set for the hearing. This
33	31		subsection does not prohibit the state agency from filing an
34	32		amendment during the hearing of a contested case provided the
35	33		opposing party is granted a continuance of at least seven days to
36	34		prepare its case on request of the opposing party.
37	35		(c) In a suit for judicial review of a final decision or
38	36		order of a state agency in a contested case, the state agency's
39	37		failure to comply with Subsection (a)(3) or (b) shall constitute
40	38		prejudice to the substantial rights of the appellant under Section
41	39		2001.174(2) unless the court finds that the failure did not
42	40		unfairly surprise and prejudice the appellant or that the appellant
43	41		waived the appellant's rights.
44	42		SECTION 2. Section 2001.054, Government Code, is amended by
45	43		adding Subsections (c-1) and (e) to read as follows:
46	44		(c-1) A state agency that has been granted the power to
47	45		summarily suspend a license under another statute may determine
48	46		that an imminent peril to the public health, safety, or welfare
49	47		requires emergency action and may issue an order to summarily
50	48		suspend the license holder's license pending proceedings for
51	49		revocation or other action, provided that the agency incorporates a
52	50		factual and legal basis establishing that imminent peril in the
53	51		order. Unless expressly provided otherwise by another statute, the
54	52		agency shall initiate the proceedings for revocation or other
55	53		action not later than the 30th day after the date the summary
56	54		suspension order is signed. The proceedings must be promptly
57	55		determined, and if the proceedings are not initiated before the
58	56		30th day after the date the order is signed, the license holder may
59	57		appeal the summary suspension order to a Travis County district
60	58		court. This subsection does not grant any state agency the power to
61	59		suspend a license without notice and an opportunity for a hearing.
62	60		(e) In a suit for judicial review of a final decision or
63	61		order of a state agency brought by a license holder, the agency's
64	62		failure to comply with Subsection (c) shall constitute prejudice to
65	63		the substantial rights of the license holder under Section
66	64		2001.174(2) unless the court determines that the failure did not
67	65		unfairly surprise and prejudice the license holder.
68	66		SECTION 3. Sections 2001.141(a), (b), and (e), Government
69	67		Code, are amended to read as follows:
70	68		(a) A decision or order of a state agency that may become
71	69		final under Section 2001.144 that is adverse to any [a] party in a
72	70		contested case must be in writing and signed by a person authorized
73	71		by the agency to sign the agency decision or order [stated in the
74	72		record].
75	73		(b) A decision or order that may become final under Section
76	74		2001.144 must include findings of fact and conclusions of law,
77	75		separately stated.
78	76		(e) If a party submits under a state agency rule proposed
79	77		findings of fact or conclusions of law, the decision or order shall
80	78		include a ruling on each proposed finding or conclusion.
81	79		SECTION 4. Section 2001.142, Government Code, is amended to
82	80		read as follows:
83	81		Sec. 2001.142. NOTIFICATION OF DECISIONS AND ORDERS.
84	82		(a) A state agency shall notify each party to [in] a contested case
85	83		[shall be notified either personally or by first class mail] of any
86	84		decision or order of the agency in the following manner:
87	85		(1) personally;
88	86		(2) if agreed to by the party to be notified, by
89	87		electronic means sent to the current e-mail address or telecopier
90	88		number of the party's attorney of record or of the party if the
91	89		party is not represented by counsel; or
92	90		(3) by first class, certified, or registered mail sent
93	91		to the last known address of the party's attorney of record or of
94	92		the party if the party is not represented by counsel.
95	93		(b) When a decision or order [On issuance] in a contested
96	94		case [of a decision] that may become final under Section 2001.144 is
97	95		signed or when an order ruling on a motion for rehearing is signed,
98	96		a state agency shall deliver or send a copy of the decision or order
99	97		to each party in accordance with Subsection (a). The state agency
100	98		shall keep a record documenting the provision of the notice
101	99		provided to each party in accordance with Subsection (a) [by first
102	100		class mail to the attorneys of record and shall keep an appropriate
103	101		record of the mailing. If a party is not represented by an attorney
104	102		of record, the state agency shall send a copy of the decision or
105	103		order by first class mail to the party and shall keep an appropriate
106	104		record of the mailing].
107	105		(c) If an adversely affected party or the party's attorney
108	106		of record does not receive the notice required by Subsections (a)
109	107		and (b) or acquire actual knowledge of a signed decision or order
110	108		before the 15th day after the date the decision or order is signed,
111	109		a period specified by or agreed to under Section 2001.144(a),
112	110		2001.146, 2001.147, or 2001.176(a) relating to a decision or order
113	111		or motion for rehearing begins, with respect to that party, on the
114	112		date the party receives the notice or acquires actual knowledge of
115	113		the signed decision or order, whichever occurs first. The period
116	114		may not begin earlier than the 15th day or later than the 90th day
117	115		after the date the decision or order was signed [A party or attorney
118	116		of record notified by mail under Subsection (b) is presumed to have
119	117		been notified on the third day after the date on which the notice is
120	118		mailed].
121	119		(d) To establish a revised period under Subsection (c), the
122	120		adversely affected party must prove, on sworn motion and notice,
123	121		that the date the party received notice from the state agency or
124	122		acquired actual knowledge of the signing of the decision or order
125	123		was after the 14th day after the date the decision or order was
126	124		signed.
127	125		(e) The state agency must grant or deny the sworn motion not
128	126		later than the date of the agency's governing board's next meeting
129	127		or, for a state agency without a governing board with
130	128		decision-making authority in contested cases, not later than the
131	129		10th day after the date the agency receives the sworn motion.
132	130		(f) If the state agency fails to grant or deny the motion at
133	131		the next meeting or before the 10th day after the date the agency
134	132		receives the motion, as appropriate, the motion is considered
135	133		granted.
136	134		(g) If the sworn motion filed under Subsection (d) is
137	135		granted with respect to the party filing that motion, all the
138	136		periods specified by or agreed to under Section 2001.144(a),
139	137		2001.146, 2001.147, or 2001.176(a) relating to a decision or order,
140	138		or motion for rehearing, shall begin on the date specified in the
141	139		sworn motion that the party first received the notice required by
142	140		Subsections (a) and (b) or acquired actual knowledge of the signed
143	141		decision or order. The date specified in the sworn motion shall be
144	142		considered the date the decision or order was signed.
145	143		SECTION 5. The heading to Section 2001.143, Government
146	144		Code, is amended to read as follows:
147	145		Sec. 2001.143. TIME OF [RENDERING] DECISION.
148	146		SECTION 6. Sections 2001.143(a) and (b), Government Code,
149	147		are amended to read as follows:
150	148		(a) A decision or order that may become final under Section
151	149		2001.144 in a contested case should [must] be signed [rendered] not
152	150		later than the 60th day after the date on which the hearing is
153	151		finally closed.
154	152		(b) In a contested case heard by other than a majority of the
155	153		officials of a state agency, the agency or the person who conducts
156	154		the contested case hearing may extend the period in which the
157	155		decision or order may be signed [issued].
158	156		SECTION 7. Section 2001.144, Government Code, is amended to
159	157		read as follows:
160	158		Sec. 2001.144. DECISIONS OR ORDERS; WHEN FINAL. (a) A
161	159		decision or order in a contested case is final:
162	160		(1) if a motion for rehearing is not filed on time, on
163	161		the expiration of the period for filing a motion for rehearing;
164	162		(2) if a motion for rehearing is filed on time, on the
165	163		date:
166	164		(A) the order overruling the motion for rehearing
167	165		is signed [rendered]; or
168	166		(B) the motion is overruled by operation of law;
169	167		(3) if a state agency finds that an imminent peril to
170	168		the public health, safety, or welfare requires immediate effect of
171	169		a decision or order, on the date the decision or order is signed,
172	170		provided that the agency incorporates in the decision or order a
173	171		factual and legal basis establishing an imminent peril to the
174	172		public health, safety, or welfare [rendered]; or
175	173		(4) on:
176	174		(A) the date specified in the decision or order
177	175		for a case in which all parties agree to the specified date in
178	176		writing or on the record; or
179	177		(B) [,] if the agreed specified date is [not]
180	178		before the date the decision or order is signed, the date the
181	179		decision or order is signed [or later than the 20th day after the
182	180		date the order was rendered].
183	181		(b) If a decision or order is final under Subsection (a)(3),
184	182		a state agency must recite in the decision or order the finding made
185	183		under Subsection (a)(3) and the fact that the decision or order is
186	184		final and effective on the date signed [rendered].
187	185		SECTION 8. Section 2001.145(b), Government Code, is amended
188	186		to read as follows:
189	187		(b) A decision or order that is final under Section
190	188		2001.144(a)(2), (3), or (4) is appealable.
191	189		SECTION 9. Section 2001.146, Government Code, is amended by
192	190		amending Subsections (a), (b), (c), (e), and (f) and adding
193	191		Subsections (g), (h), and (i) to read as follows:
194	192		(a) A motion for rehearing in a contested case must be filed
195	193		by a party not later than the 25th [20th] day after the date [on
196	194		which] the decision or order that is the subject of the motion is
197	195		signed, unless the time for filing the motion for rehearing has been
198	196		extended under Section 2001.142, by an agreement under Section
199	197		2001.147, or by a written state agency order issued under
200	198		Subsection (e). On filing of the motion for rehearing, copies of
201	199		the motion shall be sent to all other parties using the notification
202	200		procedures specified by Section 2001.142(a) [party or the party's
203	201		attorney of record is notified as required by Section 2001.142 of a
204	202		decision or order that may become final under Section 2001.144].
205	203		(b) A party must file with the state agency a reply, if any,
206	204		to a motion for rehearing [must be filed with the state agency] not
207	205		later than the 40th [30th] day after the date [on which the party or
208	206		the party's attorney of record is notified as required by Section
209	207		2001.142 of] the decision or order that is the subject of the motion
210	208		is signed, or not later than the 10th day after the date a motion for
211	209		rehearing is filed if the time for filing the motion for rehearing
212	210		has been extended by an agreement under Section 2001.147 or by a
213	211		written state agency order under Subsection (e). On filing of the
214	212		reply, copies of the reply shall be sent to all other parties using
215	213		the notification procedures specified by Section 2001.142(a) [or
216	214		order that may become final under Section 2001.144].
217	215		(c) A state agency shall act on a motion for rehearing not
218	216		later than the 55th [45th] day after the date [on which the party or
219	217		the party's attorney of record is notified as required by Section
220	218		2001.142 of] the decision or order that is the subject of the motion
221	219		is signed [that may become final under Section 2001.144] or the
222	220		motion for rehearing is overruled by operation of law.
223	221		(e) A state agency may, on its own initiative or on the
224	222		motion of any party for cause shown, by written order extend the
225	223		time for filing a motion or reply or taking agency action under this
226	224		section, provided that the agency extends the time or takes the
227	225		action not later than the 10th day after the date the period for
228	226		filing a motion or reply or taking agency action expires. An[,
229	227		except that an] extension may not extend the period for agency
230	228		action beyond the 100th [90th] day after the date [on which the
231	229		party or the party's attorney of record is notified as required by
232	230		Section 2001.142 of] the decision or order that is the subject of
233	231		the motion is signed [that may become final under Section
234	232		2001.144].
235	233		(f) In the event of an extension, a motion for rehearing is
236	234		overruled by operation of law on the date fixed by the order or, in
237	235		the absence of a fixed date, the 100th day [90 days] after the date
238	236		[on which the party or the party's attorney of record is notified as
239	237		required by Section 2001.142 of] the decision or order that is the
240	238		subject of the motion is signed [that may become final under Section
241	239		2001.144].
242	240		(g) A motion for rehearing must identify with particularity
243	241		findings of fact or conclusions of law that are the subject of the
244	242		complaint and any evidentiary or legal ruling claimed to be
245	243		erroneous. The motion must also state the legal and factual basis
246	244		for the claimed error.
247	245		(h) A subsequent motion for rehearing is not required after
248	246		a state agency rules on a motion for rehearing unless the order
249	247		disposing of the original motion for rehearing:
250	248		(1) modifies, corrects, or reforms in any respect the
251	249		decision or order that is the subject of the complaint, other than a
252	250		typographical, grammatical, or other clerical change identified as
253	251		such by the agency in the order, including any modification,
254	252		correction, or reformation that does not change the outcome of the
255	253		contested case; or
256	254		(2) vacates the decision or order that is the subject
257	255		of the motion and provides for a new decision or order.
258	256		(i) A subsequent motion for rehearing required by
259	257		Subsection (h) must be filed not later than the 20th day after the
260	258		date the order disposing of the original motion for rehearing is
261	259		signed.
262	260		SECTION 10. Section 2001.176(a), Government Code, is
263	261		amended to read as follows:
264	262		(a) A person initiates judicial review in a contested case
265	263		by filing a petition not later than the 30th day after the date [on
266	264		which] the decision or order that is the subject of complaint is
267	265		final and appealable. In a contested case in which a motion for
268	266		rehearing is a prerequisite for seeking judicial review, a
269	267		prematurely filed petition is effective to initiate judicial review
270	268		and is considered to be filed:
271	269		(1) on the date the last timely motion for rehearing is
272	270		overruled; and
273	271		(2) after the motion is overruled.
274	272		SECTION 11. The changes in law made by this Act to Chapter
275	273		2001, Government Code, apply only to an administrative hearing that
276	274		is set by the State Office of Administrative Hearings, or another
277	275		state agency conducting an administrative hearing, on or after the
278	276		effective date of this Act. A hearing set before the effective date
279	277		of this Act, or any decision issued or appeal from the hearing, is
280	278		governed by the law in effect when the hearing was set, and the
281	279		former law is continued in effect for that purpose.
282	280		SECTION 12. This Act takes effect September 1, 2015.
	281	+	______________________________ ______________________________
	282	+	President of the Senate Speaker of the House
	283	+	I hereby certify that S.B. No. 1267 passed the Senate on
	284	+	May 6, 2015, by the following vote: Yeas 31, Nays 0.
	285	+	______________________________
	286	+	Secretary of the Senate
	287	+	I hereby certify that S.B. No. 1267 passed the House on
	288	+	May 22, 2015, by the following vote: Yeas 140, Nays 0, two
	289	+	present not voting.
	290	+	______________________________
	291	+	Chief Clerk of the House
	292	+	Approved:
	293	+	______________________________
	294	+	Date
	295	+	______________________________
	296	+	Governor