By: Estes S.B. No. 1446
(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. Sections 2001.052(a) and (b), Government Code,
are amended to read as follows:
(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) either:
(A) a short, plain statement of the factual
matters asserted; or
(B) an attachment that incorporates by reference
the factual matters asserted in the complaint or petition filed
with the state agency.
(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 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, or the
complaint or petition, if applicable, 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.
SECTION 2. Section 2001.054(e), Government Code, is amended
to read as follows:
(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 or that the
license holder waived the opportunity provided in Subsection (c)(2)
to show compliance with all requirements of law for the retention of
the license.
SECTION 3. Sections 2001.142(a), (c), (d), (e), (f), and
(g), Government Code, are amended to read as follows:
(a) A state agency shall notify each party to a contested
case of any decision or order of the agency using at least one of the
following methods of service [in the following manner]:
(1) personal service [personally];
(2) if agreed to by the party to be notified, service
by electronic means sent to the current e-mail address or facsimile
[telecopier] number of the party's attorney of record or of the
party if the party is not represented by counsel; [or]
(3) service 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;
or
(4) service by a method required under the state
agency's rules or orders for a party to serve copies of pleadings in
a contested case.
(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 or the party's attorney of record 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 45th [90th] day after the date the
decision or order was signed.
(d) To establish a revised period under Subsection (c), the
adversely affected party must prove, on sworn motion and notice,
that:
(1) the date the party or the party's attorney of
record first 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;
(2) the adversely affected party exercised due
diligence by keeping the state agency and all other parties to the
contested case apprised of the current mailing address and any
electronic contact information for the adversely affected party or
the adversely affected party's attorney of record; and
(3) the adversely affected party and the party's
attorney of record did not take any action that impeded or prevented
receipt of notice of the signing of the decision or order.
(e) The state agency or a person authorized to act for the
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 or a person authorized to act for the
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 a [the] sworn motion filed under Subsection (d) is
granted with respect to the adversely affected 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 for the
movant on the date specified in the sworn motion that the movant or
the movant's attorney of record [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
for the movant. The timely filing of a sworn motion for rehearing
under Subsection (d) extends the period for agency action on any
motion for rehearing until the 100th day after the date the decision
or order subject to the motion for rehearing is signed.
SECTION 4. Section 2001.144(a), Government Code, is amended
to read as follows:
(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 timely filed [filed on
time], on the date:
(A) the order overruling the latest filed motion
for rehearing is signed; or
(B) the latest filed motion for rehearing 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; 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 before the
date the decision or order is signed, the date the decision or order
is signed.
SECTION 5. Sections 2001.146(a), (b), (e), and (i),
Government Code, are amended to read as follows:
(a) A motion for rehearing in a contested case must be filed
by a party not later than the 25th day after the date 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, the movant shall send copies of the motion
[shall be sent] to all other parties using the notification methods
[procedures] specified by Section 2001.142(a).
(b) A party must file with the state agency a reply, if any,
to a motion for rehearing not later than the 40th day after the date
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 under Section 2001.142, by an agreement under Section
2001.147, or by a written state agency order under Subsection (e).
The party [On] filing [of] the reply shall send[,] copies of the
reply [shall be sent] to all other parties using the notification
methods [procedures] specified by Section 2001.142(a).
(e) A state agency or a person authorized to act for the
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 or person 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 extension may not extend the
period for agency action beyond the 100th day after the date the
decision or order that is the subject of the motion is signed.
(i) The time limits and other requirements for filing a
subsequent motion for rehearing, a reply to the subsequent motion
for rehearing, and a ruling on the subsequent motion for rehearing
are governed by this section and Sections 2001.142, 2001.144,
2001.145, and 2001.147 [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 6. The changes in law made by this Act to Sections
2001.052 and 2001.054, Government Code, apply only to an
administrative proceeding or contested case that is initiated on or
after the effective date of this Act. An administrative proceeding
or contested case initiated before the effective date of this Act is
governed by the law in effect on the date the proceeding was
initiated, and the former law is continued in effect for that
purpose.
SECTION 7. The changes in law made by this Act to Sections
2001.142 and 2001.144, Government Code, apply only to an order or
decision made by a state agency in a contested case on or after the
effective date of this Act. An order or decision made in a
contested case before the effective date of this Act is governed by
the law in effect on the date the final order or decision was made,
and the former law is continued in effect for that purpose.
SECTION 8. This Act takes effect September 1, 2017.