Texas 2015 - 84th Regular

Texas Senate Bill SB216 Compare Versions

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

Old	New	Differences
1	1	84R7566 AAF-D
2	2	By: Birdwell, et al. S.B. No. 216
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the functions and operation of the State Office of
8	8	Administrative Hearings.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 2001.058, Government Code, is amended by
11	11	adding Subsection (d-1) to read as follows:
12	12	(d-1) On making a finding that a party to a contested case
13	13	has defaulted under the rules of the State Office of Administrative
14	14	Hearings, the administrative law judge may dismiss the case from
15	15	the docket of the State Office of Administrative Hearings and
16	16	remand it to the referring agency for informal disposition under
17	17	Section 2001.056. After the case is dismissed and remanded, the
18	18	agency may informally dispose of the case by applying its own rules
19	19	or the procedural rules of the State Office of Administrative
20	20	Hearings relating to default proceedings. This subsection does not
21	21	apply to a contested case in which the administrative law judge is
22	22	authorized to render a final decision.
23	23	SECTION 2. Section 2003.023, Government Code, is amended to
24	24	read as follows:
25	25	Sec. 2003.023. SUNSET PROVISION. The State Office of
26	26	Administrative Hearings is subject to review under Chapter 325
27	27	(Texas Sunset Act), but is not abolished under that chapter. The
28	28	office shall be reviewed during the periods in which state agencies
29	29	abolished in 2027 [2015] and every 12th year after 2027 [2015] are
30	30	reviewed.
31	31	SECTION 3. Section 2003.024, Government Code, is amended by
32	32	amending Subsections (a), (a-2), (c), and (d) and adding
33	33	Subsections (a-3) and (a-4) to read as follows:
34	34	(a) If a state agency referred matters to the office during
35	35	any of the three most recent state fiscal years for which complete
36	36	information about the agency's hourly usage is available and the
37	37	costs to the office of conducting hearings and alternative dispute
38	38	resolution procedures for the state agency are not to be paid by
39	39	appropriations to the office during a state fiscal biennium, the
40	40	office and the agency shall enter into an interagency contract for
41	41	the biennium under which the referring agency pays the office
42	42	either a lump-sum amount[,] at the start of each fiscal year of the
43	43	biennium or a fixed amount at the start of each fiscal quarter of
44	44	the biennium for[, a lump-sum amount to cover the costs of]
45	45	conducting all hearings and procedures for the agency during the
46	46	fiscal year. The office shall report to the Legislative Budget
47	47	Board any agency that fails to make a timely payment under the
48	48	contract. The lump-sum or quarterly amount paid to the office under
49	49	the contract must be based on:
50	50	(1) an hourly rate that is set by the office:
51	51	(A) in an amount that sufficiently covers the
52	52	office's full costs in conducting a hearing or procedure for the
53	53	agency, including costs for items listed in Subsection (c)(2); and
54	54	(B) in time for the rate to be reviewed by the
55	55	legislature, as part of the legislature's review of the office's
56	56	legislative appropriations request for the biennium, in
57	57	determining the office's legislative appropriations for the
58	58	biennium; and
59	59	(2) the anticipated hourly usage of the office's
60	60	services by the referring agency for each fiscal year of the
61	61	biennium, as estimated by the office under Subsection (a-1).
62	62	(a-2) The office, for a contract entered into as provided by
63	63	Subsection (a):
64	64	(1) may only require the referring agency to make an
65	65	additional payment to the office if the agency's actual hourly
66	66	usage of the office's services is greater than the agency's
67	67	anticipated hourly usage of the office's services as estimated
68	68	under Subsection (a-1) for a fiscal year by more than 10 percent;
69	69	and
70	70	(2) is only required to reimburse the referring agency
71	71	if the agency's actual hourly usage of the office's services is less
72	72	than the agency's anticipated hourly usage of the office's services
73	73	as estimated under Subsection (a-1) for a fiscal year by more than
74	74	10 percent.
75	75	(a-3) The office, for a contract entered into as provided
76	76	under Subsection (a) under which a quarterly amount is paid by the
77	77	referring agency to the office, shall:
78	78	(1) track the agency's actual hourly usage of the
79	79	office's services during each fiscal quarter and forecast, after
80	80	each fiscal quarter, the agency's anticipated hourly usage for the
81	81	rest of the fiscal year; and
82	82	(2) make adjustments to the quarterly amount if the
83	83	office forecasts under Subdivision (1) that the agency's actual
84	84	hourly usage of the office's services will differ from anticipated
85	85	hourly usage of the office's services estimated under Subsection
86	86	(a-1) by 10 percent or more at the end of the fiscal year.
87	87	(a-4) If a state agency did not refer matters to the office
88	88	during any of the three state fiscal years preceding a state fiscal
89	89	biennium for which complete information about the agency's hourly
90	90	usage would have been available and did not provide information to
91	91	the office sufficient for the office to reasonably and timely
92	92	estimate anticipated usage and enter into a contract with the
93	93	agency before the start of the state fiscal biennium, and the costs
94	94	to the office of conducting hearings and alternative dispute
95	95	resolution procedures for the state agency are not paid by
96	96	appropriations to the office for the state fiscal biennium, the
97	97	referring agency shall pay the office the costs of conducting
98	98	hearings or procedures for the agency based on the hourly rate that
99	99	is set by the office under Subsection (a) and on the agency's actual
100	100	usage of the office's services.
101	101	(c) Each state fiscal biennium, the office as part of its
102	102	legislative appropriation request shall file:
103	103	(1) information, as estimated under Subsection (a-1),
104	104	related to the anticipated hourly usage of each state agency that
105	105	refers matters to the office for which the costs of hearings and
106	106	alternative dispute resolution procedures are anticipated to be
107	107	paid by appropriations to the office; and
108	108	(2) an estimate of its hourly costs in conducting each
109	109	type of hearing or dispute resolution procedure[. The office shall
110	110	estimate the hourly cost] based on the average cost per hour during
111	111	the preceding state fiscal year of:
112	112	(A) the salaries of its administrative law
113	113	judges;
114	114	(B) the travel expenses, hearing costs, and
115	115	telephone charges directly related to the conduct of a hearing or
116	116	procedure; and
117	117	(C) the administrative costs of the office,
118	118	including docketing costs [and the administrative costs of the
119	119	division of the office that conducts the hearing or procedure].
120	120	(d) This section does not apply to hearings conducted:
121	121	(1) under Section 2003.047 or 2003.049 [by the natural
122	122	resource conservation division or the utility division]; or
123	123	(2) under the administrative license revocation
124	124	program.
125	125	SECTION 4. Subchapter B, Chapter 2003, Government Code, is
126	126	amended by adding Section 2003.025 to read as follows:
127	127	Sec. 2003.025. REQUIRED INFORMATION REGARDING ANTICIPATED
128	128	HOURLY USAGE. (a) This section applies to a state agency that has
129	129	entered into a contract with the office for the conduct of hearings
130	130	and alternative dispute resolution procedures for the agency,
131	131	including a contract under Section 2003.024, 2003.048, 2003.049, or
132	132	2003.105, during any of the three most recent state fiscal years.
133	133	(b) On a date determined by the office before the beginning
134	134	of each state fiscal biennium, a state agency to which this section
135	135	applies shall submit to the office and the Legislative Budget Board
136	136	information regarding the agency's anticipated hourly usage of the
137	137	office's services for each fiscal year of that biennium.
138	138	SECTION 5. Section 2003.0421(c), Government Code, is
139	139	amended to read as follows:
140	140	(c) This section applies to any contested case hearing
141	141	conducted by the office, except hearings conducted on behalf of the
142	142	Texas [Natural Resource Conservation] Commission on Environmental
143	143	Quality or the Public Utility Commission of Texas which are
144	144	governed by Sections 2003.047 and 2003.049.
145	145	SECTION 6. The heading to Section 2003.047, Government
146	146	Code, is amended to read as follows:
147	147	Sec. 2003.047. HEARINGS FOR TEXAS COMMISSION ON
148	148	ENVIRONMENTAL QUALITY [NATURAL RESOURCE CONSERVATION DIVISION].
149	149	SECTION 7. Sections 2003.047(a), (b), and (c), Government
150	150	Code, are amended to read as follows:
151	151	(a) The office shall [establish a natural resource
152	152	conservation division to] perform [the] contested case hearings for
153	153	the Texas [Natural Resource Conservation] Commission on
154	154	Environmental Quality.
155	155	(b) The office [division] shall conduct hearings relating
156	156	to contested cases before the commission, other than a hearing
157	157	conducted by one or more commissioners. The commission by rule may
158	158	delegate to the office [division] the responsibility to hear any
159	159	other matter before the commission if consistent with the
160	160	responsibilities of the office [division].
161	161	(c) [Only an administrative law judge in the division may
162	162	conduct a hearing on behalf of the commission. An administrative
163	163	law judge in the division may conduct hearings for other state
164	164	agencies as time allows.] The office may [transfer an
165	165	administrative law judge to the division on a permanent or
166	166	temporary basis and may] contract with qualified individuals to
167	167	serve as temporary administrative law judges as necessary.
168	168	SECTION 8. Section 2003.048, Government Code, is amended to
169	169	read as follows:
170	170	Sec. 2003.048. TEXAS [NATURAL RESOURCE CONSERVATION]
171	171	COMMISSION ON ENVIRONMENTAL QUALITY HEARINGS FEE. The office shall
172	172	charge the Texas [Natural Resource Conservation] Commission on
173	173	Environmental Quality a fixed annual fee rather than an hourly rate
174	174	for services rendered by the office to the commission. The amount
175	175	of the fee may not be less than the amount appropriated to the Texas
176	176	[Natural Resource Conservation] Commission on Environmental
177	177	Quality in the General Appropriations Act for payment to the office
178	178	[natural resource conservation division] to conduct commission
179	179	hearings. The amount of the fee shall be based on the costs of
180	180	conducting the hearings, the costs of travel expenses and telephone
181	181	charges directly related to the hearings, docketing costs, and
182	182	other applicable administrative costs of the office [including the
183	183	administrative costs of the natural resource conservation
184	184	division]. The office and the Texas [Natural Resource
185	185	Conservation] Commission on Environmental Quality shall negotiate
186	186	the amount of the fixed fee biennially, subject to the approval of
187	187	the governor, to coincide with the commission's legislative
188	188	appropriations request.
189	189	SECTION 9. The heading to Section 2003.049, Government
190	190	Code, is amended to read as follows:
191	191	Sec. 2003.049. UTILITY HEARINGS [DIVISION].
192	192	SECTION 10. Sections 2003.049(a), (b), (c), (k), and (l),
193	193	Government Code, are amended to read as follows:
194	194	(a) The office shall [establish a utility division to]
195	195	perform [the] contested case hearings for the Public Utility
196	196	Commission of Texas as prescribed by the Public Utility Regulatory
197	197	Act of 1995 and other applicable law.
198	198	(b) The office [utility division] shall conduct hearings
199	199	relating to contested cases before the commission, other than a
200	200	hearing conducted by one or more commissioners. The commission by
201	201	rule may delegate the responsibility to hear any other matter
202	202	before the commission if consistent with the duties and
203	203	responsibilities of the office [division].
204	204	(c) [Only an administrative law judge in the utility
205	205	division may conduct a hearing on behalf of the commission. An
206	206	administrative law judge in the utility division may conduct
207	207	hearings for other state agencies as time allows.] The office may
208	208	[transfer an administrative law judge into the division on a
209	209	temporary or permanent basis and may] contract with qualified
210	210	individuals to serve as temporary administrative law judges as
211	211	necessary.
212	212	(k) Hearings conducted for the commission by the office
213	213	shall be held in hearing rooms provided by the commission. The
214	214	commission shall also provide the office [utility division] access
215	215	to its computer systems, databases, and library resources.
216	216	(l) The office shall charge the commission a fixed annual
217	217	fee rather than an hourly rate for services rendered [by the utility
218	218	division] to the commission. The amount of the fee may not be less
219	219	than the amount appropriated to the commission in the General
220	220	Appropriations Act for payment to the office [utility division] to
221	221	conduct commission hearings. The amount of the fee shall be based
222	222	on the costs of conducting the hearings, the costs of travel
223	223	expenses and telephone charges directly related to the hearings,
224	224	docketing costs, and other applicable administrative costs of the
225	225	office [including the administrative costs of the utility
226	226	division]. The office and the commission shall negotiate the
227	227	amount of the fixed fee biennially, subject to the approval of the
228	228	governor, to coincide with the commission's legislative
229	229	appropriations request.
230	230	SECTION 11. Section 2003.051, Government Code, is amended
231	231	to read as follows:
232	232	Sec. 2003.051. ROLE OF REFERRING AGENCY. (a) Except in
233	233	connection with interim appeals of orders or questions certified to
234	234	an agency by an administrative law judge, as permitted by law, a
235	235	state agency that has referred a matter to the office in which the
236	236	office will conduct a hearing may not take any adjudicative action
237	237	relating to the matter until the office has issued its proposal for
238	238	decision or otherwise concluded its involvement in the matter. The
239	239	state agency may exercise its advocacy rights in the matter before
240	240	the office in the same manner as any other party.
241	241	(b) If the office issues a proposal for decision in a matter
242	242	referred to the office by a state agency, the referring agency shall
243	243	send to the office an electronic copy of the agency's final decision
244	244	or order in the matter.
245	245	SECTION 12. The heading to Subchapter D, Chapter 2003,
246	246	Government Code, is amended to read as follows:
247	247	SUBCHAPTER D. TAX HEARINGS [DIVISION]
248	248	SECTION 13. The heading to Section 2003.101, Government
249	249	Code, is amended to read as follows:
250	250	Sec. 2003.101. TAX HEARINGS [DIVISION].
251	251	SECTION 14. Sections 2003.101(a), (b), (d), and (i),
252	252	Government Code, are amended to read as follows:
253	253	(a) The office shall [establish a tax division to] conduct
254	254	hearings relating to contested cases involving the collection,
255	255	receipt, administration, and enforcement of taxes, fees, and other
256	256	amounts as prescribed by Section 111.00455, Tax Code.
257	257	(b) An administrative law judge who presides at a [in the]
258	258	tax hearing [division] is classified as a "master administrative
259	259	law judge II." Section 2003.0411 does not apply to this section.
260	260	(d) To be eligible to preside at a tax [division] hearing,
261	261	an administrative law judge, including a temporary administrative
262	262	law judge contracted with under Section 2003.043, must:
263	263	(1) be a United States citizen;
264	264	(2) be an attorney in good standing with the State Bar
265	265	of Texas;
266	266	(3) have been licensed in this state to practice law
267	267	for at least seven years; and
268	268	(4) have substantial experience in tax cases in making
269	269	the record suitable for administrative review [or otherwise; and
270	270	[(5) have devoted at least 75 percent of the person's
271	271	legal practice to Texas state tax law in at least five of the past 10
272	272	years before the date on which the person begins employment in the
273	273	tax division].
274	274	(i) For each hearing conducted under this section, an
275	275	administrative law judge [in the tax division] shall issue a
276	276	proposal for decision that includes findings of fact and
277	277	conclusions of law. In addition, the proposal for decision must
278	278	include the legal reasoning and other analysis considered by the
279	279	judge in reaching the decision. Each finding of fact or conclusion
280	280	of law made by the judge must be:
281	281	(1) independent and impartial; and
282	282	(2) based on state law and the evidence presented at
283	283	the hearing.
284	284	SECTION 15. Sections 2003.103(a) and (b), Government Code,
285	285	are amended to read as follows:
286	286	(a) The office [tax division] shall conduct all hearings
287	287	under this subchapter in a timely manner.
288	288	(b) The office [tax division] shall use every reasonable
289	289	means to expedite a case under this subchapter when the comptroller
290	290	requests that the office [division] expedite the case.
291	291	SECTION 16. The heading to Section 2003.104, Government
292	292	Code, is amended to read as follows:
293	293	Sec. 2003.104. CONFIDENTIALITY OF TAX HEARING [DIVISION]
294	294	INFORMATION.
295	295	SECTION 17. The heading to Section 2003.105, Government
296	296	Code, is amended to read as follows:
297	297	Sec. 2003.105. TAX [DIVISION] HEARINGS FEE.
298	298	SECTION 18. Section 2003.109, Government Code, is amended
299	299	to read as follows:
300	300	Sec. 2003.109. RULES; EARLY REFERRAL. (a) The comptroller
301	301	may adopt rules to provide for the referral to the office [tax
302	302	division] of issues related to a case described by Section
303	303	111.00455, Tax Code, to resolve a procedural or other preliminary
304	304	dispute between the comptroller and a party.
305	305	(b) After a referral under this section, the office [tax
306	306	division] shall docket the case and assign an administrative law
307	307	judge under Section 2003.101. If additional proceedings are
308	308	required after the consideration of the procedural or other
309	309	preliminary dispute, the office [tax division] shall appoint the
310	310	same administrative law judge to hear the case.
311	311	SECTION 19. The heading to Section 111.00455, Tax Code, is
312	312	amended to read as follows:
313	313	Sec. 111.00455. CONTESTED CASES CONDUCTED BY [TAX DIVISION
314	314	OF] STATE OFFICE OF ADMINISTRATIVE HEARINGS.
315	315	SECTION 20. Sections 111.00455(a) and (c), Tax Code, are
316	316	amended to read as follows:
317	317	(a) The [tax division of the] State Office of Administrative
318	318	Hearings shall conduct any contested case hearing as provided by
319	319	Section 2003.101, Government Code, in relation to the collection,
320	320	receipt, administration, and enforcement of:
321	321	(1) a tax imposed under this title; and
322	322	(2) any other tax, fee, or other amount that the
323	323	comptroller is required to collect, receive, administer, or enforce
324	324	under a law not included in this title.
325	325	(c) A reference in law to the comptroller that relates to
326	326	the performance of a contested case hearing described by Subsection
327	327	(a) means the [tax division of the] State Office of Administrative
328	328	Hearings.
329	329	SECTION 21. Section 524.032(b), Transportation Code, is
330	330	amended to read as follows:
331	331	(b) A hearing shall be rescheduled if, before the fifth day
332	332	before the date scheduled for the hearing, [the department
333	333	receives] a request for a continuance from the person who requested
334	334	the hearing is received in accordance with the memorandum of
335	335	understanding adopted under Section 524.033(c). Unless both
336	336	parties agree otherwise, the hearing shall be rescheduled for a
337	337	date not earlier than the fifth day after the date [the department
338	338	receives] the request for [the] continuance is received.
339	339	SECTION 22. Section 524.033, Transportation Code, is
340	340	amended by adding Subsections (c) and (d) to read as follows:
341	341	(c) The department and chief administrative law judge of the
342	342	State Office of Administrative Hearings shall adopt and at least
343	343	biennially update a memorandum of understanding establishing that
344	344	the State Office of Administrative Hearings has primary scheduling
345	345	responsibility for a hearing under this subchapter. The memorandum
346	346	of understanding must, at a minimum:
347	347	(1) set out the roles and responsibilities of the
348	348	State Office of Administrative Hearings and the department in
349	349	scheduling a hearing under this subchapter, including which agency
350	350	is responsible for scheduling each stage of a hearing;
351	351	(2) ensure that the State Office of Administrative
352	352	Hearings and the department have timely access to scheduling and
353	353	continuance information; and
354	354	(3) provide for the transfer of funding for department
355	355	employees responsible for scheduling hearings under this
356	356	subchapter from the department to the State Office of
357	357	Administrative Hearings when the State Office of Administrative
358	358	Hearings assumes responsibility for initial scheduling of hearings
359	359	under this subchapter.
360	360	(d) The State Office of Administrative Hearings and the
361	361	department shall consult with the Department of Information
362	362	Resources and the Office of Court Administration of the Texas
363	363	Judicial System in developing any information technology solutions
364	364	needed to complete the transfer of scheduling responsibilities, as
365	365	outlined in the memorandum of understanding adopted under
366	366	Subsection (c).
367	367	SECTION 23. Section 14.052(a), Utilities Code, is amended
368	368	to read as follows:
369	369	(a) The commission shall adopt and enforce rules governing
370	370	practice and procedure before the commission and, as applicable,
371	371	practice and procedure before the [utility division of the] State
372	372	Office of Administrative Hearings.
373	373	SECTION 24. Sections 14.053(a) and (b), Utilities Code, are
374	374	amended to read as follows:
375	375	(a) The [utility division of the] State Office of
376	376	Administrative Hearings shall conduct each hearing in a contested
377	377	case that is not conducted by one or more commissioners.
378	378	(b) The commission may delegate to the [utility division of
379	379	the] State Office of Administrative Hearings the authority to make
380	380	a final decision and to issue findings of fact, conclusions of law,
381	381	and other necessary orders in a proceeding in which there is not a
382	382	contested issue of fact or law.
383	383	SECTION 25. Sections 102.006(a), (b), (c), and (e),
384	384	Utilities Code, are amended to read as follows:
385	385	(a) The railroad commission by rule shall provide for
386	386	administrative hearings in contested cases to be conducted by one
387	387	or more members of the railroad commission, by railroad commission
388	388	hearings examiners, or by the [utility division of the] State
389	389	Office of Administrative Hearings. The rules must provide for a
390	390	railroad commission hearings examiner or the [utility division of
391	391	the] State Office of Administrative Hearings to conduct each
392	392	hearing in a contested case that is not conducted by one or more
393	393	members of the railroad commission. A hearing must be conducted in
394	394	accordance with the rules and procedures adopted by the railroad
395	395	commission.
396	396	(b) The railroad commission may delegate to a railroad
397	397	commission hearings examiner or to the [utility division of the]
398	398	State Office of Administrative Hearings the authority to make a
399	399	final decision and to issue findings of fact, conclusions of law,
400	400	and other necessary orders in a proceeding in which there is not a
401	401	contested issue of fact or law.
402	402	(c) The railroad commission by rule shall define the
403	403	procedures by which it delegates final decision-making authority
404	404	under Subsection (b) to a railroad commission hearings examiner or
405	405	to the [utility division of the] State Office of Administrative
406	406	Hearings.
407	407	(e) The State Office of Administrative Hearings shall
408	408	charge the railroad commission a fixed annual rate for hearings
409	409	conducted by the office under this section only if the legislature
410	410	appropriates money for that purpose. If the legislature does not
411	411	appropriate money for the payment of a fixed annual rate under this
412	412	section, the State Office of Administrative Hearings shall charge
413	413	the railroad commission an hourly rate set by the office under
414	414	Section 2003.024(a), Government Code, [of not more than $90 per
415	415	hour] for hearings conducted by the office under this section.
416	416	SECTION 26. The following provisions of the Government Code
417	417	are repealed:
418	418	(1) Section 2003.101(c);
419	419	(2) Section 2003.102;
420	420	(3) Section 2003.106; and
421	421	(4) Section 2003.107.
422	422	SECTION 27. (a) Section 2001.058(d-1), Government Code, as
423	423	added by this Act, applies only to a case referred to the State
424	424	Office of Administrative Hearings on or after September 1, 2015.
425	425	(b) The State Office of Administrative Hearings shall
426	426	develop and submit a legislative appropriations request in
427	427	accordance with Section 2003.024, Government Code, as amended by
428	428	this Act, beginning with the office's legislative appropriations
429	429	request for the 2018-2019 state fiscal biennium.
430	430	(c) Section 2003.024, Government Code, as amended by this
431	431	Act, applies only to a contract entered into on or after the
432	432	effective date of this Act. A contract entered into before that
433	433	date is governed by the law in effect immediately before the
434	434	effective date of this Act, and the former law is continued in
435	435	effect for that purpose.
436	436	(d) Not later than September 1, 2016, the Texas Department
437	437	of Transportation and the chief administrative law judge of the
438	438	State Office of Administrative Hearings shall adopt an initial
439	439	memorandum of understanding under Section 524.033(c),
440	440	Transportation Code, as added by this Act.
441	441	SECTION 28. (a) Except as provided by Subsection (b) of this
442	442	section, this Act takes effect September 1, 2015.
443	443	(b) Section 524.032(b), Transportation Code, as amended by
444	444	this Act, takes effect September 1, 2016.