By: Estes, et al. S.B. No. 1267
(Clardy)
A BILL TO BE ENTITLED
AN ACT
relating to contested cases conducted 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
seven [three] days before the date set for the hearing. In a
proceeding in which the state agency has the burden of proof, 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 the statute or rule not later than
the seventh day before the date set for the hearing. This
subsection does not prohibit the state agency from filing an
amendment during the hearing of a contested case provided the
opposing party is granted a continuance of at least seven days to
prepare its case on request of the opposing party.
(c) In a suit for judicial review of a final decision or
order of a state agency in a contested case, the state agency's
failure to comply with Subsection (a)(3) or (b) shall constitute
prejudice to the substantial rights of the appellant under Section
2001.174(2) unless the court finds that the failure did not
unfairly surprise and prejudice the appellant or that the appellant
waived the appellant's rights.
SECTION 2. Section 2001.054, Government Code, is amended by
adding Subsections (c-1) and (e) to read as follows:
(c-1) A state agency that has been granted the power to
summarily suspend a license under another statute may determine
that an imminent peril to the public health, safety, or welfare
requires emergency action and may issue an order to summarily
suspend the license holder's license pending proceedings for
revocation or other action, provided that the agency incorporates a
factual and legal basis establishing that imminent peril in the
order. Unless expressly provided otherwise by another statute, the
agency shall initiate the proceedings for revocation or other
action not later than the 30th day after the date the summary
suspension order is signed. The proceedings must be promptly
determined, and if the proceedings are not initiated before the
30th day after the date the order is signed, the license holder may
appeal the summary suspension order to a Travis County district
court. This subsection does not grant any state agency the power to
suspend a license without notice and an opportunity for a hearing.
(e) In a suit for judicial review of a final decision or
order of a state agency brought by a license holder, the agency's
failure to comply with Subsection (c) shall constitute prejudice to
the substantial rights of the license holder under Section
2001.174(2) unless the court determines that the failure did not
unfairly surprise and prejudice the license holder.
SECTION 3. Sections 2001.141(a), (b), and (e), Government
Code, are amended to read as follows:
(a) A decision or order of a state agency 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 the agency to sign the agency decision or order [stated in the
record].
(b) A decision or order that may become final under Section
2001.144 must include findings of fact and conclusions of law,
separately stated.
(e) If a party submits under a state agency rule proposed
findings of fact or conclusions of law, the decision or order 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
[shall be notified either personally or by first class mail] of any
decision or order of the agency in the following manner:
(1) personally;
(2) if agreed to by the party to be notified, by
electronic means sent to the current e-mail address or telecopier
number of the party's attorney of record or of the party if the
party is not represented by counsel; or
(3) by first class, certified, or registered mail sent
to the last known address of the party's attorney of record or of
the party if the party is not represented by counsel.
(b) When a decision or order [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 deliver or send a copy of the decision or order
to each party in accordance with Subsection (a). The state agency
shall keep a record documenting the provision of the notice
provided to each party in accordance with Subsection (a) [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 or the party's attorney
of record does not receive the notice required by Subsections (a)
and (b) or acquire actual knowledge of a signed decision or order
before the 15th day after the date the decision or order is signed,
a period specified by or agreed to under Section 2001.144(a),
2001.146, 2001.147, or 2001.176(a) relating to a decision or order
or motion for rehearing begins, with respect to that party, on the
date the party receives the notice or acquires actual knowledge of
the signed decision or order, whichever occurs first. The period
may not begin earlier than the 15th day or later than the 90th day
after the date the decision or 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 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 order
was after the 14th day after the date the decision or order was
signed.
(e) The state agency must grant or deny the sworn motion not
later than the date of the agency's governing board's next meeting
or, for a state agency without a governing board with
decision-making authority in contested cases, not later than the
10th day after the date the agency receives the sworn motion.
(f) If the state agency fails to grant or deny the motion at
the next meeting or before the 10th day after the date the agency
receives the motion, as appropriate, the motion is considered
granted.
(g) If the sworn motion filed under Subsection (d) is
granted with respect to the party filing that motion, all the
periods specified by or agreed to under Section 2001.144(a),
2001.146, 2001.147, or 2001.176(a) relating to a decision or order,
or motion for rehearing, shall begin on the date specified in the
sworn motion that the party first received the notice required by
Subsections (a) and (b) or acquired actual knowledge of the signed
decision or order. The date specified in the sworn motion shall be
considered the date the decision or 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. Sections 2001.143(a) and (b), 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 should [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. Section 2001.144, Government Code, is amended to
read as follows:
Sec. 2001.144. DECISIONS OR ORDERS; WHEN FINAL. (a) A
decision or order 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;
(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 or order is signed,
provided that the agency incorporates in the decision or order a
factual and legal basis establishing an imminent peril to the
public health, safety, or welfare [rendered]; or
(4) on:
(A) the date specified in the decision or order
for a case in which all parties agree to the specified date in
writing or on the record; or
(B) [,] if the agreed specified date is [not]
before the date the decision or order is signed, the date the
decision or 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].
SECTION 8. Section 2001.145(b), Government Code, is amended
to read as follows:
(b) A decision or order that is final under Section
2001.144(a)(2), (3), or (4) is appealable.
SECTION 9. Section 2001.146, Government Code, is amended by
amending Subsections (a), (b), (c), (e), and (f) and adding
Subsections (g), (h), and (i) to read as follows:
(a) A motion for rehearing in a contested case must be filed
by a party not later than the 25th [20th] day after the date [on
which] the decision or order that is the subject of the motion is
signed, unless the time for filing the motion for rehearing has been
extended under Section 2001.142, by an agreement under Section
2001.147, or by a written state agency order issued under
Subsection (e). On filing of the motion for rehearing, copies of
the motion shall be sent to all other parties using the notification
procedures specified by Section 2001.142(a) [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 party must file with the state agency a reply, if any,
to a motion for rehearing [must be filed with the state agency] not
later than the 40th [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 or order that is the subject of the motion
is signed, or not later than the 10th day after the date a motion for
rehearing is filed if the time for filing the motion for rehearing
has been extended by an agreement under Section 2001.147 or by a
written state agency order under Subsection (e). On filing of the
reply, copies of the reply shall be sent to all other parties using
the notification procedures specified by Section 2001.142(a) [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 55th [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 or order that is the subject of the motion
is signed [that may become final under Section 2001.144] or the
motion for rehearing is overruled by operation of law.
(e) A state agency may, on its own initiative or on the
motion of any party for cause shown, by written order extend the
time for filing a motion or reply or taking agency action under this
section, provided that the agency extends the time or takes the
action not later than the 10th day after the date the period for
filing a motion or reply or taking agency action expires. An[,
except that an] extension may not extend the period for agency
action beyond the 100th [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 or order that is the subject of
the motion is signed [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, the 100th day [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 or order that is the
subject of the motion is signed [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 the
complaint and any evidentiary or legal ruling claimed to be
erroneous. The motion must also state the legal and factual basis
for the claimed error.
(h) A subsequent motion for rehearing is not required after
a state agency rules on a motion for rehearing unless the order
disposing of the original motion for rehearing:
(1) modifies, corrects, or reforms in any respect the
decision or order that is the subject of the complaint, other than a
typographical, grammatical, or other clerical change identified as
such by the agency in the order, including any modification,
correction, or reformation that does not change the outcome of the
contested case; or
(2) vacates the decision or order that is the subject
of the motion and provides for a new decision or order.
(i) A subsequent motion for rehearing required by
Subsection (h) must be filed not later than the 20th day after the
date the order disposing of the original motion for rehearing is
signed.
SECTION 10. Section 2001.176(a), 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 or order that is the subject of complaint is
final and appealable. In a contested case in which a motion for
rehearing is a prerequisite for seeking judicial review, a
prematurely filed petition is effective to initiate judicial review
and is considered to be filed:
(1) on the date the last timely motion for rehearing is
overruled; and
(2) after the motion is overruled.
SECTION 11. The changes in law made by this Act to Chapter
2001, Government Code, apply only to an administrative hearing that
is set by the State Office of Administrative Hearings, or another
state agency conducting an administrative hearing, on or after the
effective date of this Act. A hearing set before the effective date
of this Act, or any decision issued or appeal from the hearing, is
governed by the law in effect when the hearing was set, and the
former law is continued in effect for that purpose.
SECTION 12. This Act takes effect September 1, 2015.