86R12694 SLB-F
By: Kacal H.B. No. 3114
A BILL TO BE ENTITLED
AN ACT
relating to contested case hearings on matters under the
jurisdiction of the Texas Commission on Environmental Quality.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. CONTESTED CASE HEARINGS
SECTION 1.01. The heading to Subchapter H, Chapter 5, Water
Code, is amended to read as follows:
SUBCHAPTER H. [DELEGATION OF] HEARINGS
SECTION 1.02. Section 5.311, Water Code, is amended to read
as follows:
Sec. 5.311. DELEGATION OF RESPONSIBILITY. (a) The
commission by rule may delegate to an administrative law judge of
the commission [State Office of Administrative Hearings] the
responsibility to hear any matter before the commission, if
consistent with the responsibilities of the office of
administrative law judge.
(b) The [Except as provided in Subsection (a), the]
administrative law judge shall report to the commission on the
hearing in the manner provided by law.
SECTION 1.03. Section 5.312(a), Water Code, is amended to
read as follows:
(a) Except as provided in Subsection (b) and otherwise in
this subchapter, all permit decisions shall be made within 180 days
of the receipt of the permit application or application amendment
or the determination of administrative completeness, whichever is
later.
SECTION 1.04. Section 5.315, Water Code, is amended to read
as follows:
Sec. 5.315. DISCOVERY IN CASES USING PREFILED WRITTEN
TESTIMONY. In a contested case hearing delegated by the commission
to an administrative law judge [the State Office of Administrative
Hearings] that uses prefiled written testimony, all discovery must
be completed before the deadline set by the administrative law
judge [for the submission of that testimony].
SECTION 1.05. Subchapter H, Chapter 5, Water Code, is
amended by adding Sections 5.316 through 5.326 to read as follows:
Sec. 5.316. HEARING BEFORE COMMISSION; APPLICABILITY OF
OTHER LAW. (a) An administrative law judge to whom the commission
has delegated a contested case hearing shall conduct the hearing
before the commission.
(b) The provisions of Chapter 2001, Government Code, apply
to contested case hearings for the commission to the extent not
inconsistent with this section.
Sec. 5.317. ADMINISTRATIVE LAW JUDGES AND TECHNICAL
ADVISORS. (a) The commission may contract with qualified
individuals to serve as temporary or permanent administrative law
judges or technical advisors as necessary.
(b) To be eligible to preside at a hearing on behalf of the
commission, an administrative law judge, regardless of temporary or
permanent status, must:
(1) be licensed to practice law in this state; and
(2) have the expertise necessary to conduct hearings
regarding technical or other specialized subjects that may come
before the commission.
(c) The commission may also appoint a technical advisor to
assist the administrative law judge in presiding over a delegated
hearing.
Sec. 5.318. HEARING TIMELINES. (a) The commission shall
specify the date by which the administrative law judge is expected
to complete the proceeding and provide a proposal for decision to
the commission. The administrative law judge may extend the
proceeding if the administrative law judge determines that failure
to grant an extension would deprive a party of due process or
another constitutional right. The administrative law judge shall
establish a docket control order designed to complete the
proceeding by the date specified by the commission.
(b) For a matter sent to hearing under Section 5.556 or
5.557, the administrative law judge shall complete the proceeding
and provide a proposal for decision to the commission not later than
the earlier of:
(1) the 180th day after the date of the preliminary
hearing; or
(2) the date specified by the commission.
(c) The timeline specified by Subsection (b) or (f), as
applicable, may be extended:
(1) by agreement of the parties with the approval of
the administrative law judge; or
(2) by the administrative law judge if the judge
determines that failure to extend the timeline would unduly deprive
a party of due process or another constitutional right.
(d) For the purposes of Subsection (c)(2), a political
subdivision has the same constitutional rights as an individual.
(e) This subsection applies only to a matter sent to hearing
under Section 5.557. The administrative law judge may not hold a
preliminary hearing until after the executive director has issued a
response to public comments under Section 5.555.
(f) For a matter relating to an application described by
Section 11.122(b-1), the administrative law judge must complete the
proceeding and provide a proposal for decision to the commission
not later than the 270th day after the date the matter was sent to
hearing.
Sec. 5.319. SCOPE OF HEARING. (a) In delegating a matter
for hearing, the commission shall provide to the administrative law
judge a list of specified issues. Each specified issue must have
been raised by an affected person in a comment submitted by that
affected person in response to a permit application in a timely
manner. The list of issues provided must:
(1) be detailed and complete; and
(2) contain either:
(A) only factual questions; or
(B) mixed questions of fact and law.
(b) Except as otherwise provided by this subsection, the
scope of the hearing is limited to the issues specified by the
commission. On the request of a party, the administrative law judge
may consider an issue that was not specified by the commission if
the administrative law judge determines that:
(1) the issue is material;
(2) the issue is supported by evidence; and
(3) there are good reasons for the failure to supply
available information regarding the issue during the public comment
period.
Sec. 5.320. DISCOVERY. (a) The scope of permissible
discovery is limited to:
(1) any matter that:
(A) is reasonably calculated to lead to the
discovery of admissible evidence regarding any issue specified by
the commission; or
(B) the administrative law judge has agreed to
consider; and
(2) the production of documents:
(A) reviewed or relied on in preparing
application materials or selecting the site of the proposed
facility; or
(B) relating to the ownership of the applicant or
the owner or operator of the facility or proposed facility.
(b) The commission by rule shall:
(1) provide for subpoenas and commissions for
depositions; and
(2) require that discovery be conducted in accordance
with the Texas Rules of Civil Procedure, except that the commission
by rule shall determine the level of discovery under Rule 190, Texas
Rules of Civil Procedure, appropriate for each type of case
considered by the commission, taking into account the nature and
complexity of the case.
Sec. 5.321. CERTIFICATION OF ISSUES. The commission shall
adopt rules providing for certification to the commission of an
issue that involves an ultimate finding of compliance with or
satisfaction of a statutory standard the determination of which is
committed to the discretion or judgment of the commission by law.
The rules must address, at a minimum:
(1) the issues that are appropriate for certification;
and
(2) the procedure to be used in certifying an issue.
Sec. 5.322. PRIMA FACIE DEMONSTRATION IN CERTAIN CASES.
(a) In a contested case regarding a permit application sent to
hearing under Section 5.556 or Section 5.557, the filing with the
administrative law judge of the application, the draft permit
prepared by the executive director, the preliminary decision issued
by the executive director, and other sufficient supporting
documentation in the administrative record of the permit
application establishes a prima facie demonstration that:
(1) the draft permit meets all state and federal legal
and technical requirements; and
(2) a permit, if issued consistent with the draft
permit, would protect human health and safety, the environment, and
physical property.
(b) A party may rebut a demonstration under Subsection (a)
by presenting evidence that:
(1) relates to a matter sent to hearing under Section
5.557, or an issue included in a list submitted under Section 5.319
in connection with a matter specified under Section 5.556; and
(2) demonstrates that one or more provisions in the
draft permit violate a specifically applicable state or federal
requirement.
(c) If in accordance with Subsection (b) a party rebuts a
presumption established under Subsection (a), the applicant and the
executive director may present additional evidence to support the
draft permit.
Sec. 5.323. SANCTIONS. (a) An administrative law judge
hearing a case on behalf of the commission, on the judge's own
motion or on motion of a party and after notice and an opportunity
for a hearing, may impose appropriate sanctions as provided by
Subsection (b) against a party or its representative for:
(1) filing a motion or pleading that is groundless and
brought:
(A) in bad faith;
(B) for the purpose of harassment; or
(C) for any other improper purpose, such as to
cause unnecessary delay or needless increase in the cost of the
proceeding;
(2) abuse of the discovery process in seeking, making,
or resisting discovery; or
(3) failure to obey an order of the administrative law
judge or the commission.
(b) A sanction imposed under Subsection (a) may include, as
appropriate and justified, issuance of an order:
(1) disallowing further discovery of any kind or of a
particular kind by the offending party;
(2) charging all or any part of the expenses of
discovery against the offending party or its representatives;
(3) holding that designated facts be considered
admitted for purposes of the proceeding;
(4) refusing to allow the offending party to support
or oppose a designated claim or defense or prohibiting the party
from introducing designated matters into evidence;
(5) wholly or partly disallowing requests for relief
by the offending party and excluding evidence in support of those
requests; and
(6) wholly or partly striking pleadings or testimony,
or both.
Sec. 5.324. PROPOSAL FOR DECISION. (a) After hearing
evidence and receiving legal argument, an administrative law judge
shall:
(1) separately state findings of fact, conclusions of
law, and any ultimate findings required by statute; and
(2) make a proposal for decision to the commission and
serve the proposal for decision on all parties.
(b) An opportunity shall be given to each party to file
exceptions to the proposal for decision and briefs related to the
issues addressed in the proposal for decision.
(c) The commission shall consider and act on the proposal
for decision.
Sec. 5.325. COMMISSION CONSIDERATION OF AND ACTION ON
PROPOSAL FOR DECISION. (a) Except as provided by Section 361.0832,
Health and Safety Code, the commission shall consider the proposal
for decision prepared by the administrative law judge, the
exceptions of the parties, and the briefs and argument of the
parties.
(b) The commission may amend the proposal for decision,
including any finding of fact, but an amendment to the proposal for
decision and order must be based solely on the record made before
the administrative law judge. An amendment by the commission must
be accompanied by an explanation of the basis of the amendment.
(c) The commission may return the matter back to the
administrative law judge to:
(1) reconsider any findings and conclusions set forth
in the proposal for decision; or
(2) take additional evidence or to make additional
findings of fact or conclusions of law.
(d) The commission shall serve a copy of the commission's
order, including its finding of facts and conclusions of law, on
each party.
Sec. 5.326. ALTERNATIVE DISPUTE RESOLUTION. (a) An
administrative law judge hearing a case on behalf of the commission
may not, without the agreement of all parties, issue an order
referring the case to an alternative dispute resolution procedure
if the commission has already conducted an unsuccessful alternative
dispute resolution procedure.
(b) If the commission has not already conducted an
alternative dispute resolution procedure, the administrative law
judge shall consider the commission's recommendation in
determining whether to issue an order referring the case to the
procedure.
SECTION 1.06. Sections 5.556(d) and (e), Water Code, are
amended to read as follows:
(d) The commission may not specify [refer] an issue to be
heard at a contested case [the State Office of Administrative
Hearings for a] hearing unless the commission determines that the
issue:
(1) involves a disputed question of fact;
(2) was raised during the public comment period; and
(3) is relevant and material to the decision on the
application.
(e) If the commission grants a request for a contested case
hearing it shall:
(1) limit the number and scope of the issues to be
specified [referred to the State Office of Administrative Hearings]
for a hearing; and
(2) consistent with the nature and number of the
issues to be considered at the hearing, specify the maximum
expected duration of the hearing.
SECTION 1.07. Section 5.557(b), Water Code, is amended to
read as follows:
(b) Sections 5.318(a), 5.319, 5.554, 5.555, and 5.556 [of
this code and Sections 2003.047(e) and (f), Government Code,] do
not apply to an application referred for a hearing under Subsection
(a).
ARTICLE 2. CONFORMING AMENDMENTS
SECTION 2.01. Section 2003.024(d), Government Code, is
amended to read as follows:
(d) This section does not apply to hearings conducted:
(1) under Section [2003.047 or] 2003.049; or
(2) under the administrative license revocation
program.
SECTION 2.02. Section 2003.025(a), Government Code, is
amended to read as follows:
(a) This section applies to a state agency that has entered
into a contract with the office for the conduct of hearings and
alternative dispute resolution procedures for the agency,
including a contract under Section 2003.024, [2003.048,] 2003.049,
or 2003.105, during any of the three most recent state fiscal years.
SECTION 2.03. Section 2003.0421(c), Government Code, is
amended to read as follows:
(c) This section applies to any contested case hearing
conducted by the office, except hearings conducted on behalf of
[the Texas Commission on Environmental Quality or] the Public
Utility Commission of Texas which are governed by Section [Sections
2003.047 and] 2003.049.
ARTICLE 3. REPEALER
SECTION 3.01. The following provisions are repealed:
(1) Section 2003.047, Government Code;
(2) Section 2003.048, Government Code; and
(2) Section 5.313, Water Code.
ARTICLE 4. TRANSITION; EFFECTIVE DATE
SECTION 4.01. The changes in law made by this Act apply only
to a contested case hearing referred by the Texas Commission on
Environmental Quality to an administrative law judge on or after
the effective date of this Act. A contested case hearing referred
by the Texas Commission on Environmental Quality to an
administrative law judge before the effective date of this Act is
governed by the law in effect at the time the case was referred and
the former law is continued in effect for that purpose.
SECTION 4.02. This Act takes effect September 1, 2019.